Interviewer: Callie Crossley in for Tanzina Vega this week, nearly 400 treaties exist in the US to protect tribal lands and hunting and fishing rights, and they have rarely been honored by federal and local governments, but that might be changing. Last month, Michigan Governor Gretchen Whitmer shut down a controversial pipeline in Northern Michigan citing among other things, an 1836 treaty that guarantees indigenous rights to hunt and fish in that area. Indigenous treaties are also helping secure environmental wins in other areas. Tribes in Washington State won a case in 2018 to restore their fisheries, and last month Oregon and California announced plans to remove four dams on the Klamath River based on treaty rights.

Asserting treaty rights has the potential to increase environmental protection in many parts of the country and tribal members invoking treaty rights can sometimes make a stronger legal claim than non-Native citizens. There are so many new treaty violations that they can't be corrected fast enough. Some legal experts worry that sweeping treaty assertions that are unsuccessful in court could set a dangerous precedent. Matthew Fletcher is the director of Michigan State University’s Indigenous Law and Policy Center, member of the Grand Traverse Band of Ottawa and Chippewa Indians, and a tribal judge. Matthew, welcome back to the takeaway.

Matthew Fletcher: Thanks for having me.

Interviewer: First off, can you explain how treaties were actually intended to protect the environment and what specifically they protect?

Matthew: Sure. Treaties, really fundamentally, what they do is establish a homeland for Indian people for Indian tribes. A treaty typically would say the tribe would sell off its historical traditional territories in exchange for a permanent reservation. That would usually have some sort of boundary established. That homeland, that reservation is a homeland, and whatever is contained in that homeland is protected by the treaty specifically, and whatever resources are needed, even outside of the reservation are protected as well. Things like water, access to wildlife, fishing game, that sort of thing. All of those are protected by the treaty.

Interviewer: When did things start to fall apart with these treaties, and why weren't they respected and enforced?

Matthew: Things fell apart within a few years of the treaties being negotiated, in most instances, you would see the introduction of settlers from outside the area, they would come in, they would want to come onto reservation lands, or they would want to take control over waters and other resources that the reservation lands depend on. United States government very rarely would do anything about those encroachments. In fact, they would often encourage those encroachments and then over time, the United States Congress would pass laws designed to allow for the introduction of new people into reservation lands and divert resources away from the tribes.

Interviewer: What would the environmental landscape look like in this country if the treaties had been enforced throughout our history?

Matthew: Well, there would be a lot more trees, there would be a lot more clean water, and there would be more resources available to the tribes. That they would be, a much greater a greener environmental landscape throughout the country, wherever there is Indian country,

Interviewer: Matthew, is it common to use treaty rights for environmental preservation?

Matthew: Well, probably not until the last few decades. Treaty rights are usually litigated on the question of access to fishing game or reservation boundaries or reservation lands but there's always been this implied notion that if a treaty is designed to establish a homeland, then it must be also designed to allow for the preservation of the resources needed to fulfill the purposes of that homeland. In the West, you'll see a lot of cases in the last few decades where the tribes are talking about the access to water, even off the reservation access to fishing game, even off the reservation to allow for the purposes of the reservation to be fulfilled.

On occasion, you'll see a treaty like the treaties in Michigan and treaties in Washington state that explicitly allow for access to fishing game off the reservation. Now, at the beginning of the program, in the introduction, you talked about a case in 2018, where the courts have affirmed the right or the protection of the environment as a means of fulfilling the purposes of the treaty. You need to have a decent environment in order to have fishing game and clean water. That kind of litigation is just really beginning and we're starting to see more and more cases along those lines now.

Interviewer: Were you surprised to see Governor Whitmer use treaty rights as a reason to oppose a pipeline? What do you think prompted her to do that and was it politically advantageous to her?

Matthew: All of that is right. I was not terribly surprised to see Governor Whitmer refer to treaty rights. Indian tribes have often been allies of the state government when the state government is looking at restricting polluters or restricting the kind of economic activity that creates problems for the environment. Reference to the Treaty of 1836 was a pleasant surprise in that the tribes really had been advocating for many years as a means of cutting back on these threats to the environment.

I guess the surprise comes from the fact that not so many years ago 1970s, 1980s, the State of Michigan and the tribes were at loggerheads when it came to treaty rights. The state litigated fervently and went to Congress to try to get the treaty rights abrogated by Congress to make them go away because they were so hostile to the assertion of treaty rights by the tribes.

Now we've come full circle where the state is looking at the protection of Lake Michigan, Lake Huron, Lake Superior, et cetera and refers to treaty rights to say, "Well, we've got to protect the rights of our citizens." Indian people are citizens of the state. It makes perfect sense now for the state to say, among other things, that the treaty protects the access to that water and the clean water in Lake Michigan and Lake Huron and Lake Superior.

Interviewer: What's the difference between fighting for the right to fish and fighting for the conservation of the resource that allows you to exercise that right?

Matthew: Well, fighting for the right to fish assumes that there are fish, and that there's clean water in a good habitat for the fish. It requires the tribes and I suppose the state if it's going to assert these rights, I guess, on behalf of the tribes. It requires the tribes to prove that there is an additional rights inherent in the treaty, that in order to have the access to resources like fish, you have to have a clean environment, you have to have a successful habitat for the fish to thrive.

Whenever treaty rights are litigated in court, the tribes and whoever is siding with the tribes be it a state government or the United States or whomever has to go back and prove that in say 1836, that there was an intent to negotiate for access to fish on and off the reservation. That's one difficult thing that, is something that has already been done, it's been established, but every time you litigate treaty rights, you have to hire historians, ethnohistorians, anthropologists, experts to write basically a book every single time that you litigate these cases to prove that the Indian people of 1836 believed that that's what the treaty did.

Once you've done that, to understand access to fish, then you've got to do the additional step of proving that it's access to a clean environment and a successful habitat. That requires yet another round of complex litigation.

Interviewer: What have we seen in recent years in terms of how government officials relate to these treaties?

Matthew: It definitely is a recent trend, you started to see this in the pipeline case, in the pipelines in North Dakota and elsewhere in the Great Plains, where tribes are asserting that a pipeline that runs through traditional territories of Indian tribe is actually foreclosed, is prohibited by treaty rights. In the case of the Standing Rock, Dakota Access Pipeline dispute, the tribes are asserting and still are asserting that if the pipeline breaks or ruptures, then the resulting impact will destroy the access of water, access to water that the tribes have negotiated for in their treaty rights and their treaty to preserve a homeland.

This type of argument has been made more recently, but it goes all the way back, a century into the 1900s, where the United States Supreme Court acknowledged that the purpose of a reservation is to create a homeland. In order to have a homeland, you have to have access to water. This access to water, clean water, and a livable reservation is the core of the argument base, that is rooted in treaty rights, to protect the environment. You're starting to see these cases, again and again, you're starting to see political momentum behind the cases.

The tribes don't really like to litigate treaty rights because it's incredibly complex and expensive, but it also puts the core of their legal being to the test in court and you can never really tell what's going to happen in court, even if you have a really strong legal claim. Politically, however, you don't really have to make all of those arguments. You don't have to prove to a court in a way that puts things to the test. You can just say we have these treaty rights. Here's our position on the treaty. Here's our position on the environment and you can create a sort of phalanx of political power. The tribes are lined up to make that argument in a political manner in the political arena, and it's much more successful.

Interviewer: How has the collaboration of tribes with the climate movement changed the political power that tribes have if it is?

Matthew: Well, I think it has. Back in the early days of the treaty rights fights, you would see a lot of non-Indians line up against the tribes to side with the States and say there's no treaty rights to hunt and fish. They were in that position to the tribes because they thought that access to the fish and game was a zero sum game. We're starting to realize that with the environmental movement and the conservation movement, which tend to be on opposite political sides, we all have the same interests with tribes and the tribes want to protect the environment so that there's access to fishing game.

The conservation movement wants to protect the environment to get access to fishing game. The environmental movement is interested in protecting the environment for the purposes of protecting the environment. We're all lined up. These three groups that at times were at loggerheads over treaty rights are now suddenly on the same side in a lot of these issues. You add in the reality that in the past few decades tribes are large employers regionally, and some of these rural areas. A lot of people are starting to side with the tribes generally because they depend on the tribes for their livelihoods.

Interviewer: Some people say it's a tedious process to try and make a dent in the many, many treaty violations over the past century. Does it make sense legally to use this tactic?

Matthew: Well, it doesn't. It's incredibly expensive, but at the same time anytime a tribe is threatened, anytime a tribe thinks that its treaty rights are threatened or it's homeland is threatened, they are willing to make that decision to expend those resources, to put everything on the line. Keep in mind that treaties are the core of the existence in many ways of modern day tribes. If you ever want to get a tribe riled up politically, threaten their treaty rights and they will absolutely line up against whatever power is making that claim.

It is tedious and it's very expensive and complex, and it's a much easier argument to make in the political arena than it is in court, but that doesn't stop tribes. They will absolutely make that argument now, but they've only been able to do that in the past four or five decades. For many of the tribes in Michigan and in California, those tribes are really just coming into modern existence with a sense of self-determination since the '80s and '90s. For them it's very much this kind of claim in court or in the political arena is very much a new arrangement, a new situation for them and a really good one. They're actually able to make decisions for themselves and decide when and where to assert treaty rights.

Interviewer: Now, are you worried about this setting of dangerous precedent?

Matthew: Well, you're always worried when a tribe goes to court and loses. If you get a court ruling that goes all the way to the United States Supreme court that says something along the lines of, we're not going to enforce implied treaty rights in the same way that we would enforce explicit treaty rights, and that's always a threat and it can threaten all tribes.

What we're seeing in the Supreme court right now is justices like Justice Gorsuch saying that we're not interested in the politics of Indian country. We're not interested in what the impacts of these cases are going to be. We're going to read the treaty. We're going to look at the way Indian people understood that treaty at the time it was negotiated and that's all that matters. If you have those kinds of judges on the bench, they arewhat they call textualists then, and that's basically the kind of judges that are being appointed to the federal and state benches right now, the tribes are in a really good position, relatively speaking.

Interviewer: How do treaty rights intersect with tribal sovereignty? I think that's something that many people don't understand.

Matthew: Just in the past half century, since the 1970s, tribes have been able to govern themselves. Before the 1970s, the federal government through the Bureau of Indian affairs ran Indian country completely. Tribes were not able to make decisions on how to expend resources. They were often not allowed to assert treaty rights for environmental purposes or any other purposes. The federal government used to be able to decide who the tribes could hire as lawyers, if they could even hire a lawyer.

Since the '70s the tribes have that power now themselves, the federal government has turned over its obligations to the tribes to govern Indian country. Once that happened it allows tribes to make a choice at any given moment when they feel threatened on their treaty rights issues to make the claim, when and where to make the claim, how to make the claim, which lawyers they're going to hire to make the claim, that sort of thing.

That's how those things intersect. Tribes are very circumspect on how they assert treaty rights, but when they do assert treaty rights, it's a little bit like asserting a nuclear option, especially in court, because it's an existential question for the tribes whenever they go to court on treaty rights. They're very careful about picking and choosing moments to make that decision.

In Michigan, for example, the tribes have intervened in all sorts of legal proceedings to challenge the pipeline that runs under Lake Michigan, but they have not yet asserted that there's a treaty right to kick that pipeline out. If all of these other proceedings fail and it doesn't really look like they will, maybe then the tribes will make a choice that it's time to bust out the treaty rights claim and assert it then.

Interviewer: Given that, what do you expect to see over the next year in terms of how treaty rights will impact environmental protection?

Matthew: Well, I think you're going to see a lot of tribes making claims. Climate change is a really big deal. You see forest fires in West, you see pollution of water supplies in the Great Plains. I think tribes at this point are getting ready, they're dusting off the treaty rights arguments. You might see some really big cases. I think that Standing Rock, Sioux case involving the Dakota Access Pipeline is pending in court. You're seeing cases that involve, say the Shoshone-Bannock tribes preservation of its resources and suitsagainst polluters are pending in the Supreme court.

Those kinds of things are really important cases that can establish that treaty rights really can protect the environment. You're going to see, obviously what's going on with line five under Lake Michigan going to be a really big case right now with the tribes lined up with the state of Michigan against the pipeline company.

Interviewer: Matthew Fletcher is the director of Michigan State University's Indigenous Law and Policy Center. Member of the grand traverse band of Ottawa and Chippewa Indians and a tribal judge. Thank you very much for joining me, Matthew.

Matthew: Absolutely.

[00:18:42] [END OF AUDIO]

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