Effects of American Indian Treaties on Development and Operation of Transportation Facilities (2024)
Chapter: NCHRP LRD 94: Effects of American Indian Treaties on Development and Operation of Transportation Facilities
 DECEMBER 2024 |
LEGAL RESEARCH DIGESTNCHRP LRD 94 |
NATIONAL COOPERATIVE HIGHWAY RESEARCH PROGRAM
Effects of American Indian Treaties on Development and Operation of Transportation Facilities
This digest was prepared under NCHRP Project 20-06, “Legal Problems Arising Out of Highway Programs,” for which the Transportation Research Board (TRB) is the agency coordinating the research. Under Topic 26-01, Matthew Adams, Sara Dutschke, Robert Randall, Nicole Grigg, William Mumby, and Thomas Sayre, Kaplan Kirsch & Rockwell LLP, San Francisco, CA, prepared this digest. The opinions and conclusions expressed or implied in this digest are those of the researchers who performed the research and are not necessarily those of the Transportation Research Board; the National Academies of Sciences, Engineering, and Medicine; or the program sponsors. The responsible senior program officer is Gwen Chisholm Smith.
Background
State departments of transportation have a continuing need to keep abreast of operating practices and legal elements of specific problems in highway law. The NCHRP Legal Research Digest and the Selected Studies in Transportation Law (SSTL) series are intended to keep departments up-to-date on laws that will affect their operations.
Foreword
Recently, the State of Washington was required to redesign the culverts beneath its roads to facilitate the passage of salmon. This mandate arose from the interpretation of treaties with American Indian tribes dating back to the 1850s, which predated Washington’s admission to the United States. These treaties specifically address fishing rights. A proceeding in the ongoing case of United States v. Washington affirmed these rights, leading to the recognition that the state must update its transportation infrastructure to ensure the protection of salmon habitats.
The significance of tribal treaty rights is now increasingly influencing local and state planning and regulatory bodies, particularly in their decisions regarding the construction and operation of transportation facilities.
In 2020, the U.S. Supreme Court reinforced the fact that American Indian treaties established before statehood—and never abrogated by Congress—remain in effect. In McGirt v. Oklahoma, the Court ruled that a Native American accused of crimes committed within the boundaries of a reservation established prior to Oklahoma’s statehood could not be tried in state court (591 U.S. ____ (2020)) because, pursuant to a treaty with the Muscogee Nation, the State of Oklahoma remained, for relevant purposes, “Indian country” subject to federal jurisdiction. This decision underscores the necessity for states to reassess the ongoing relevance of treaties enacted before they achieved statehood.
NCHRP LRD 94: Effects of American Indian Treaties on Development and Operation of Transportation Facilities examines how state departments of transportation (DOTs) plan, develop, and operate transportation infrastructure that crosses lands reserved by treaty. Key considerations include:
- Ongoing validity of treaties.
- Impact on modern development.
- Engagement with tribal stakeholders.
This digest will be valuable to transportation attorneys representing state DOTs and authorities, as well as their contractors and consultants. It will also benefit policymakers, local, state, and federal personnel, transportation practitioners, decision-makers, and stakeholders involved in ensuring that transportation projects comply with legal and cultural obligations.
