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Excerpted From: Gerald Torres, Decolonization: Treaties, Resource Use, and Environmental Conservation, 91 University of Colorado Law Review 709 (Spring, 2020) (143 Footnotes) (Full Document)


GearldTorresSince the 1970s, Indian policy has been guided by a federal commitment to tribal self-governance. The exact contours of this policy differ, but at a minimum, it is supposed to guide the approach of the federal government in its relations to tribes. Where state and private interests collide with tribal interests, the role of the federal government is often as a mediator of competing claims. In a sensitive and insightful piece, Professor Charles Wilkinson illustrates the way collaboration is supposed to work. He describes the process through which the tribes and the federal government negotiated the creation of what he calls “the first native national monument.” That description reflects what Professor Wilkinson believes is a turning point in the relationship among tribes, states, federal agencies, and private stakeholders in untangling the historically constituted web of interests that bedevil a fair adjustment of interests in land and resource management. U.S. colonial expansion into Indian Country meant that non-native expectations had priority in disputes over policy and law. The western movement was accompanied by presumptions about rightful claims to land and resources that are attendant to the American expression of settler colonialism. Professor Wilkinson illustrates that the physical landscape and the legal relations in which that landscape is embedded require careful attention to the mutual dependence of sacred relations and the more secularly denominated ecosystemic services. Co-management agreements can create a legal space where the various competing interests can be accommodated in a way that reduces the cost of conflict.

The congeries of legal sources available for directing any specific action complicates using law as a guide for reframing relations between the tribes and their prior antagonists. The sources of law range from treaties to foundational statutes like the Northwest Ordinance or the Non-Intercourse Act. As illustrated by Professor Wilkinson, the Antiquities Act provided the legal foundation for the creation of Bears Ears National Monument, but it was the cooperation of the tribes, who shared a long and deep connection to the area, that proved essential for providing the substance necessary for the shaping of the monument. These tribes included the Hopi, Zuni, Ute Mountain Ute, Uintah and Ouray Mountain Ute, and the Navajo nations, who together created the Inter-Tribal Coalition, which provided early leadership during the creation of the monument. The shaping was as much conceptual as physical. By combining the traditional knowledge of the tribes with federal land management practices, the creation of the monument demonstrated how federal land and resource management in the West ought to proceed. The Organization for Economic Cooperation and Development (OECD) defines co-management as “a process of management in which government shares power with resource users, with each given specific rights and responsibilities in relation to information and decision-making.” One of the hallmarks of co-management is the recognition that different knowledge systems can improve decision-making. While co-management is an imprecise term lacking a single, agreed-upon definition, the term usually refers to a spectrum of institutional arrangements through which users and other stakeholders share the obligations and responsibilities of management. In the context of tribal co-management agreements that are defined by treaty obligations, one must also consider how both sovereignty and the federal trust duty are understood. This point needs to be underlined because co-management agreements between tribes and states always include at least three sovereigns: the tribes, the states, and the federal government. Typically, the federal government acts as a trustee for the tribes, but the tribes themselves get to determine their interests. As I discuss below, treaties create special obligations for the federal government and represent pre-commitments that are absent in regulating ceded land over which the tribes have aboriginal, but not treaty or statutory, interests.

Treaties will structure the broad outlines of responsibility, but the courts have played, and likely will continue to play, an important background role. The long trail of decolonization--and with it the gradual recognition that tribes should govern themselves and be free to make decisions that are central to their sovereign status--should inform our understanding of the politics of resource management. While states have long maintained a preemptory position, the Supreme Court has been clear that unless Congress acts, rights and resources secured by treaties survive the entry of states into the union. A state and a tribe even negotiate an agreement concerning resource management in the shadow of treaty rights and treaty conflicts. While parties cannot ignore the political and property regimes that guide expectations, courts provide techniques to understand the treaties' specific words. The conflicts that plague resource management on public lands, especially where the management of those public resources implicate private land (whether native or non-native), have their roots in disputes over treaties.

Treaties between tribes and the federal government are contentious. Their exact legal status and the rights attendant to them have long been fraught. One such example is Congress removing the constitutional foundation in an 1871 rider to the Indian Appropriations Act. It stated that:

No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired.

Removing treaty power from the executive emboldened states to use other arguments to limit tribal rights. In one example, states used the equal footing doctrine to impliedly repeal treaty guarantees. Despite constant attempts to limit tribal rights, courts have mostly sustained tribal sovereignty by considering tribes domestic and dependent nations under both treaties and executive orders. Although clothed in sovereign and jurisdictional claims, the conflicts have almost always been local, as the pressure on the ground over resource use translates into legal action. Conflict arises between the precise contours of tribal power and to what extent states may limit those powers.

As recently as 2018, an equally divided Supreme Court affirmed states' duties to honor treaty obligations and manage resources in a method consistent with those obligations. In Washington v. United States, the Washington tribes claimed that the state may not act in ways that materially diminish the fishery resource, especially salmon, even if the actions by the state were not intended to reduce the resource but were nonetheless a predicable consequence. The state resisted, asserting that it would result in the tribes having an environmental right that was not contemplated by the treaty. Determining the extent of the tribes' rights required careful attention to the demands of the treaty. By studying the litigation arising from the Stevens Treaties, this Essay explores what obligations the state might have to the tribes (and vice versa) and whether co-management agreements can prevent the dead weight associated with litigation, an allocative inefficiency caused by the market distortions that legal disputes often produce. By looking at co-management agreements, while recognizing that they cover a variety of resources, this Essay aspires to catalog and evaluate the agreements from an efficiency perspective as well as from a perspective of mutual obligations for the provision of environmental services.

The legal struggle between Stevens Treaty tribes and the State of Washington has persisted for over a century. Washington resisted the requirements derived from the Stevens Treaties almost from the beginning. Multiple treaties comprise the Stevens Treaties, and they involve most of the tribes in what is now Washington and parts of Idaho and Oregon. While they go by a variety of names (such as the Treaty of Hellgate, the Point Elliot Treaty, and the Quinault Treaty, among others), they are commonly grouped together because of the role Governor Stevens played in their formation. As Kent Richards summarized:

In 1854, Stevens met in Washington, D.C., with Manypenny and his second-in-command, Charles Mix, concurrent with the commissioner's treaty sessions with the Kansas-Nebraska tribes. Before Stevens returned to Olympia, Mix, acting for Manypenny, issued written instructions to the governor. His directive reiterated that Stevens had been appointed to conclude “Articles of Agreement & Convention with the Indian Tribes in Washington Territory,” a region stretching from the divide of the Rocky Mountains to the Pacific Ocean.

The treaties at issue in the litigation affirm, among other things, the right of tribes to take salmon in common with non-Indians at all of the customary places. The question facing the Court in the most recent litigation was whether there were additional obligations on the states to ensure the continued sustainability of the resource. This question, especially in times of climate disruption, is critically important to tribes and their members. The impacts of climate change, for example, have had dramatic impacts on the variability of water that affect the salmon fisheries as well as the irrigation claims of farmers and other claimants to the water. In addition, those tribes that depend on shellfish fisheries are seeing a direct impact on the health of those fisheries.

Consistently enforcing obligations claimed by the tribes would also benefit non-Indians and would highlight the fundamental structure of trust duties that a state owes to its people. Litigation over resources demonstrates that the states are bound by treaty commitments and that those commitments require states to balance competing demands reflecting that all stakeholders' rights are equal. The treaty litigation shows that all decisions, even those that are only indirectly tied to a specific resource decision, are clothed in the general trust duty to safeguard public resources. Litigation also increases the costs of decision-making without necessarily improving the long-term outcome.

[. . .]

I reviewed fifteen co-management agreements to determine whether there were lessons that could be learned from existing agreements and to determine the effects of persistent litigation on the structure of those agreements. 9 I can make a few generalizations based on this review. First, establishing the boundaries of treaty or litigation-based property rights was paramount, so much so that the agreements were careful to state areas of continued disagreement and to preserve rights to litigate. Second, the tribes were also careful to insist on the sovereign status of the tribes and to claim all the protections such a status might entail. Any resource management agreement was not an abridgement of that status but was an act taken consistent with it. Such insistence was especially clear when the agreement was with a subdivision of the state or with a local authority. The co-management agreements might usefully be understood as signposts on a new path towards sovereign cooperation.

All the co-management agreements are steps towards changing the colonial relationship that has dominated federal and state policy. When President Nixon declared the era of termination over and welcomed the birth of a new period of self-determination, his declaration did not signal the end of the struggle for a more autonomous scope of action for tribes. 0 To the contrary, ending the era of termination marked the beginning of a period that required states to adjust to a new era of government-to-government relations. Though states would continue to resist tribal sovereignty, they would no longer be able to rely on the federal government as their constant ally.

As illustrated in this Essay, the struggle for tribal sovereignty worthy of the name continues to this day. Nonetheless, tribes and non-tribal actors have recognized that bargaining in the shadow of the law 1 is a step towards recognizing the mutual needs of parties, so long as they can create strong boundaries premised on fundamental sovereign claims. Where there are treaties, the claims are capable of clear expression. The fights at the margins, where disputes over treaty guarantees remain, are unlikely to reduce the costs to the states. Importantly, as in the case of resource management, the express words of the treaties are often the starting point. The purpose of the treaties and the tribes' understanding at the time the treaties were adopted are the lodestars for interpreting the parties' obligations. How those obligations will be expressed and how differences will be resolved are the questions that are at the heart of the negotiations.

Only by recognizing the legal and ethical bankruptcy of resisting the end of a colonial relationship with tribes can states move forward and accomplish two important things. First, by recognizing the validity of the treaty claims and the correlative rights necessary to achieve the purposes of the treaties, the costs of litigation can be reduced, if not eliminated. The parties can also design procedures that balance sovereign claims. Second, rather than understanding the decision as one in which the states lose by having to redesign their administrative procedures to account for treaty obligations, the states and the tribes should recognize that the mutuality of resource protection creates obligations on both sides. This means that designing resource-protection procedures can induce the tribes to undertake actions that have potential long-term benefit to both tribes and non-Indians.

This does not intend to oversimplify the decolonization of American Indian law, but the litigation demonstrates that “[t]he question of rights and justice for Indigenous peoples is concerned not only with the distribution of resources but also with the 'capability’ of the resources to fulfill the well-being of a people.” 2 The conflict over resources is also a conflict over the fundamental relationship between tribal and non-tribal people. As Professor Curley put it when recounting a conflict over water rights:

The proposed water settlement produced contradictory logics, practices, and frameworks that combined two “traditions of Indigenous resistance,” one rooted in the language of self-determination and sovereignty and the other in emerging notions of decolonization. This hybridity of seeking increased water recognition within colonial law, while advocating for decolonial waterscapes, speaks to the complicated and fundamentally entangled political landscapes of Indigenous peoples.

Untangling the history of colonization and braiding in a commitment to mutual respect and self-determination is what the litigation over treaty resource rights is really about. Litigation concerning treaty-protected resources involves the seemingly perpetual conflict between tribal and non-tribal people. Zero-sum conflict fundamentally misunderstands what is at stake. Tribes and states must co-exist. Working out a relationship that does not merely replicate the history of tribal oppression, but which can make a space for both governments to assert their rightful role in managing crucial resources, is not just politically sensible but economically sensible as well. Studying the history of this litigation shows that judicial resolution of conflict is one way, but perhaps not the best way, to resolve these disputes and begin to put the dismal history of colonialism behind us.

Professor of Environmental Justice, Yale School of Forestry and Environmental Studies and Associated Professor, Yale Law School.

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