EFFECTS OF AMERICAN INDIAN TREATIES ON DEVELOPMENT AND OPERATION OF TRANSPORTATION FACILITIES

Matthew Adams, Sara Dutschke, Robert Randall, Nicole Grigg, William Mumby, and Thomas Sayre, Kaplan Kirsch & Rockwell LLP, San Francisco, CA

I. INTRODUCTION

Treaties with American Indian tribes played a central role in the development of the United States. And while the “treaty era” of Federal Indian policy ended in the 1870s, the treaties themselves, the legal rights they convey, and the tribal governments entitled to exercise those rights all remain important and vital parts of the American legal landscape today.

The U.S. Supreme Court’s recent decision in McGirt v. Oklahoma returned tribal treaties to the spotlight. In McGirt, the Court held that a Native American accused of crimes that occurred inside the boundaries of the Muscogee Creek Nation Reservation—established before Oklahoma became a state—could not be tried in state court. Among other things, the decision confirms that treaty obligations cannot be altered, nor reservations diminished, without express congressional authorization. And that principle, in turn, raises important questions about planning, development, and operation of transportation infrastructure that crosses lands reserved by treaty:

• Do treaties entered long ago remain in effect and, if so, how do they relate to contemporary tribal governments?
• How might tribal treaties affect development and operation of modern transportation facilities?
• How, if at all, do state departments of transportation address tribal treaties and resolve disputes with tribal stakeholders?

These issues—and others—are addressed in the sections which follow. Section II provides an overview of relevant legal and historical background, describing salient aspects of the treaty era as well as subsequent allotment, reorganization, termination, and modern periods of Federal Indian policy. Section III describes our research scope and methods, including both legal analysis and survey work. Section IV presents our findings on continuing tribal treaty obligations; potential impacts of tribal treaties on transportation facilities, both new and existing; resolution of recent disputes involving linear infrastructure and tribal treaties; and the results of our survey of state department of transportation approaches to tribal treaty issues. Finally, Section V synthesizes our conclusions and proposes to reconcile an apparent inconsistency between survey results and legal research.

II. RELEVANT LEGAL AND HISTORICAL BACKGROUND

From the nation’s founding, Congress has alternated between two contradictory sets of policies toward Indian Country: on one hand, policies supporting tribal self-government and self-determination; on the other hand, policies intended to assimilate tribes (and their citizens) into the broader population and terminate their status as separate sovereigns. Federal Indian policy—including, not least, negotiation, administration, and enforcement of treaties with tribal governments—can best be understood when placed in this historical perspective.¹ As the U.S. Court of Appeals for the Ninth Circuit once put it, Indian policy is “better explained by history than by logic.”² With that in mind, we begin with a brief overview of relevant legal and historical background.

A. The Treaty Era

The U.S. Constitution gives Congress broad power to manage relations with American Indian tribes—a power Congress initially wielded through treaty-making with tribal representatives. Although there are important differences among the resulting treaties, they share several common themes.

First, the overriding goal of the United States during the Treaty Era was simply to obtain American Indian lands. The United States generally took an interest in American Indian lands that had become surrounded by non–American Indian settlements. Treaties typically included cessions of land from tribe(s) to the United States, but also included reservations of the right to pass through American Indian territory³ or to purchase rights-of-way.⁴ Tribes were often guaranteed special rights in ceded lands, such as the right to take fish⁵ or game.⁶

Second, in negotiating these treaties, tribal representatives generally started from an inferior bargaining position in several

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¹ STEPHEN L. PEVAR, THE RIGHTS OF INDIANS AND TRIBES 3 (4th ed. 2012) [hereinafter THE RIGHTS OF INDIANS AND TRIBES].

² United States v. Bruce, 394 F.3d 1215, 1218 (9th Cir. 2005).

³ See, e.g., Treaty with Ottawas, Chippewas, Pottawatamies, 1821, art. 6, 7 Stat. 218; Treaty with Wyandots, etc., 1795, art. 3, 7 Stat. 49 (Treaty of Greenville); see also Treaty with the Cherokees, 1817, art. 9, 7 Stat. 156 (providing for free navigation on all navigable streams on the reservation).

⁴ See, e.g., Treaty with Pottawatomies, 1861, art. 5, 12 Stat. 1191 (reserving right of railroad company to purchase reservation land); Treaty with the Delawares, 1860, art. 3, 12 Stat. 1129 (granting railroad company preference to purchase land through reservation).

⁵ See, e.g., Treaty with Nez Perces, 1855, art. 3, 12 Stat. 957; Treaty with Nisquallys, etc., 1854, art. 3, 10 Stat. 1132 (Treaty of Medicine Creek); Treaty with the Chippewas, 1820, art. 3, 7 Stat. 206.

⁶ See, e.g., Treaty with the Chippewas, 1819, art. 5, 7 Stat. 203 (also granting the “privilege of making sugar upon the same land, committing no unnecessary waste upon the trees”); Treaty with the Wyandots, etc., 1817, art. 11, 7 Stat. 160.

respects—not least because they were forced to parley in a language and legal system foreign to them.

Third, a treaty’s existence did not guarantee its enforcement. Some treaties were negotiated but not ratified by the Senate, including, most infamously, a series of treaties negotiated in California.⁷ Other treaties were ratified but later repudiated as the product of bribery or negotiation by unqualified representatives.⁸

Fourth, the United States often failed to fulfill the terms of fully ratified treaties. And, perhaps not surprisingly, federal officials were often unable, or unwilling, to prevent states or individuals from violating treaty terms for which tribal parties had negotiated in good faith.⁹

Toward the end of the Treaty Era, the United States insisted on treaty terms and language that became increasingly hostile toward tribes. Many of these later treaties subjected the internal affairs of the tribes to federal control. Examples include cession of all lands, relinquishment of claims against the United States, and perhaps most extreme, termination of the signatory tribe as a sovereign entity.¹⁰ Along with the increasing encroachment on tribal power came federal authority over handling and distributing tribal funds and various other internal tribal governance matters.¹¹

This shift, along with the varied jurisdictional provisions contained in the treaties, helped create the complex jurisdictional pattern that exists in Indian Country today. While early treaties embodied the foundational premise that tribes are (and would remain) sovereigns, later treaties reflected a trend toward increasing federal control and attempts to abolish tribal authority and self-determination.

In 1871, Congress proclaimed the United States would no longer make treaties with American Indian tribes. But the end of treaty-making did not put an end to treaties. For one thing, tribal rights under then-existing treaties remained in effect. For another, Federal Indian policy continued in a similar vein, alternating between promoting self-determination and seeking to eliminate tribal self-governance—albeit with executive orders and policy statements frequently standing in for treaties.¹²

Indeed, many of the legal doctrines established during the Treaty Era continue to animate Federal Indian law today, including several of the most fundamental tenets of treaty-making and -interpretation. These core principles include the following:

• Tribes are independent, sovereign governments;
• Matters affecting self-governance are normally reserved to tribes themselves;
• The United States nonetheless has broad plenary power over American Indian affairs;
• States have limited jurisdiction in Indian Country; and
• Because American Indian tribes are not foreign nations but instead are “distinct political” communities “that may, more correctly, perhaps be denominated domestic dependent nations” whose “relation to the United States resembles that of a ward to his guardian,” there is a “trust relationship” between the United States and tribal governments (and their tribal citizens).¹³

These principles, in turn, have given rise to special canons governing the construction of treaties with American Indian nations. Intended to take into consideration the way tribes may have understood treaty rights and obligations, the Indian canons of construction require that ambiguities in treaties (or statutes) be resolved in favor of tribes and tribal interests—that is, “the words of a treaty must be construed in the sense in which they would naturally be understood by the Indians.”¹⁴ Additionally, the canons require that treaties be understood as grants of rights from American Indian people/tribes to the United States in which American Indian tribes and their people reserve all rights not granted—not the other way around. And while Congress does hold the power to abrogate tribal treaties, courts will not find that abrogation has occurred absent clear congressional intent.¹⁵

In addition to the Indian canons of construction, the law provides general principles for identifying and evaluating relationships between tribal treaty parties and modern tribal governments. In assessing whether modern tribal governments qualify as “successors in interest” to the signatories of historic

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⁷ See FRANCIS PAUL PRUCHA, AMERICAN INDIAN TREATIES: THE HISTORY OF A POLITICAL ANOMALY 244 (Univ. Cal. Press 1997) [hereinafter PRUCHA]; VINE DELORIA JR. & RAYMOND J. DEMALLIE, DOCUMENTS OF AMERICAN INDIAN DIPLOMACY: TREATIES, AGREEMENTS, AND CONVENTIONS 1775-1979 (Univ. Okla. Press 1999).

⁸ See PRUCHA, supra note 7; JAY KINNEY, A CONTINENT LOST—A CIVILIZATION WON: INDIAN LAND TENURE IN AMERICA 37-38, 44-45, 52, 71, 93-94 (Johns Hopkins Press 1937) (Arno Press reprint 1975).

⁹ See, e.g., Oneida Indian Nation v. New York, 719 F.2d 525, 529 (2d Cir. 1983) (noting federal authorities’ futile requests that New York secure federal commissioners before acquiring Iroquois land); JILL NORGREN, THE CHEROKEE CASES: TWO LANDMARK FEDERAL DECISIONS IN THE FIGHT FOR SOVEREIGNTY 48 (Univ. Okla. Press 2004) (discussing federal unwillingness to enforce Cherokee treaties).

¹⁰ See, e.g., Treaty with Wyandots, 1850, arts. 1-2, 9 Stat. 987; Treaty with the Senecas, etc., 1867, art. 13, 15 Stat. 513; see also Conley v. Ballinger, 216 U.S. 84, 90 (1910) (acknowledging that the Wyandot Treaty provided for “the resumption of the tribal mode of life by the Wyandottes.”).

¹¹ See, e.g., Treaty with Sacs and Foxes, 1859, art. 11, 15 Stat. 467 (giving the Secretary of the Interior power over tribal money).

¹² INDIAN TRIBES AS SOVEREIGN GOVERNMENTS 7 (Charles Wilkinson & The American Indian Resources Institute, American Indian Lawyer Training Program, Inc. (AILTP)) (2nd ed. 1988).

¹³ Cherokee Nation v. Georgia, 30 U.S. 1, 18 (1831).

¹⁴ Herrera v. Wyoming, 587 U.S. 329, 345 (2019) (internal citations and quotations omitted).

¹⁵ Nebraska v. Parker, 577 U.S, 481, 488 (2016) (congressional intent to diminish the boundaries of an American Indian reservation “must be clear” either because of text or “unequivocal evidence” of the “contemporaneous and subsequent understanding of the status of the reservation of members and nonmembers, as well as the United States and the State”); Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 790 (2014) (“[A] congressional decision [to abrogate tribal immunity] must be clear.… That rule of construction reflects an enduring principle of Indian law: Although Congress has plenary authority over tribes, courts will not lightly assume that Congress in fact intends to undermine Indian self-government.”); Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202 (1999) (“Congress may abrogate treaty rights, but it must clearly express its intent to do so.”).

treaties, the courts generally focus on a combination of political institutions and history. For example, in People v. Caswell, the court held that “[t]o be a political successor in interest requires demonstrating that ‘some defining characteristic of the original tribe persists in an evolving tribal community.’”¹⁶ Conversely, a modern tribal government is not entitled to exercise treaty rights simply because some of its citizens may be descended from a treaty signatory.¹⁷ Another court framed the test as follows: “If a modern tribe cannot show itself the same entity that signed the treaty, it can attempt to prove itself the successor in interest to the original signatory tribe. To do so, it must still show both ancestry from a signatory and continued organizational structure. But it must also show that it and the signatory tribe ‘consolidated or merged and demonstrate also that together they maintain an organized tribal structure.’”¹⁸ It is important to note that courts have recognized tribes as successors in interest even when the federal relationship with the tribes or bands is not continuous.¹⁹ In sum, while the names, government structures, and leadership of tribal treaty parties may have shifted over time, their treaty rights remain enforceable by any political successor.

B. The Allotment Era

Over time, Federal Indian policy shifted from tribe-by-tribe treaty agreements to general and comprehensive legislation focused on assimilation and “civilization” of tribal groups. These policies often emphasized acquisition of American Indian lands and resources, an approach (purportedly) justified by the perception that American Indians would need less land as they became more “civilized.”

Originally, most tribal land was owned communally. Early federal policy supported the rights of American Indian nations to maintain common tribal land, along with the social and political constructs that were associated with those commons.²⁰ Starting in 1854, however, the Commissioner of Indian Affairs began to systematically persuade tribes to accept allotment of their lands, and treaties entered from that time forward frequently included clauses authorizing (or even mandating) allotment.²¹

In 1887, Congress enacted the General Allotment Act (also known as the Dawes Act) with the specific purposes of “end[ing communal] tribal land ownership” and “substitute[ing] private ownership,” on the theory that “private ownership by individual Indians would better advance their assimilation as self-supporting members of our society and relieve the Federal Government of the need to continue supervision of Indian affairs.”²² Pursuant to the Dawes Act, tribes and their citizens were forced to surrender undivided interests in commonly owned land in exchange for a personal, divided interest, terminating the federal trusteeship over the estate. Allotted lands were generally held in trust for a limited number of years, and then parceled out to American Indians individually, in fee. More often than not, these parcels soon passed into non–Native hands.

The Dawes Act applied to all reservations and granted the President of the United States authority to allot specified quantities of reservation land to individual American Indians “whenever in his opinion any reservation or any part thereof … is advantageous for agricultural and grazing purposes .…”²³ As an incentive for further assimilation, the act granted American citizenship to allotees and to any American Indian “who has voluntarily taken up … his residence separate and apart from any tribe of Indians … and has adopted the habits of civilized life.”²⁴ Additionally, it allowed for negotiations with tribes for the sale of the unallotted or “surplus” reservation lands, which could then be opened for homesteading by settlers.²⁵

Amendments to the Dawes Act accelerated tribal land loss. First, the Bureau of Indian Affairs (BIA) was given the power in 1891 to lease allotted lands whenever, “by reason of age or other disability, any allottee … can not personally and with benefit to himself occupy or improve his allotment or any part thereof[.]”²⁶ Further, the Dawes Act was amended to delay the granting of citizenship and also to grant greater federal discretion in the issuance of fee patents.²⁷ In time, Congress began simply declaring, without the requisite tribal consent, surplus lands available for homesteading and retained the proceeds from the sales for the affected tribe’s benefit.²⁸

Between 1887 and 1934 the lands of 118 American Indian reservations were allotted.²⁹ Certain areas of the country were more impacted than others. For instance, many reservations in the Southwest avoided allotment because were already being

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¹⁶ 336 Mich. App. 59, 77 (2021) (citing United States v. State of Washington, 641 F.2d 1368, 1373 (W.D. Wash. 1979)).

¹⁷ Id.

¹⁸ State v. Snyder, 2017 Wash. App. LEXIS 779 ¶ 31 (Feb. 21, 2017).

¹⁹ United States v. Michigan, 471 F. Supp. 192, 265 (W.D. Mich. 1979).

²⁰ COHEN’S HANDBOOK OF FEDERAL INDIAN LAW § 16.03[2][a] at 1072 (Nell Jessup Newton ed., 2012) [hereinafter COHEN’S].

²¹ See, e.g., Treaty with the Ioways, 1854, art. 6, 10 Stat. 1069; Treaty with the Omahas, 1854, art. 6, 10 Stat. 1043; Treaty with the Ottoes and Missourias, 1854, art. 6, 10, Stat. 1038.

²² N. Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 650 n.1 (1976) (emphasis added).

²³ CONFERENCE OF WESTERN ATTORNEYS GENERAL, AMERICAN INDIAN LAW DESKBOOK 16 (Univ. Press of Colo. 1993) [hereinafter AMERICAN INDIAN LAW DESKBOOK].

²⁴ Id. at 17.

²⁵ Id. at 18.

²⁶ Id. at 17.

²⁷ Id. at 17-18. Individual American Indians nationwide were not recognized as U.S. citizens until 1924 (The Indian Citizenship Act of 1924 (43 Stat. 253, enacted June 2, 1924)).

²⁸ Id. at 19. From 1887 to 1900, the United States processed 53,186 allotments amounting to nearly 5 million acres. COHEN’S, supra note 20, § 16.03[2][b] at 1073-74. By 1920, almost 36 million acres were allotted. Id. By 1934 approximately two-thirds (or 27 million acres) of all the land allotted in fee to individual American Indians had passed into non–American Indian ownership either by sale or involuntary transfer. Id.

²⁹ AMERICAN INDIAN POLICY REVIEW COMM’N, FINAL REPORT 6 (1977).

used for farming or raising livestock and thus were not seen as needing conversion from common ownership.³⁰

The impacts of the Dawes Act were catastrophic for tribes and their citizens. When the Dawes Act was enacted, 138 million acres of land were held by tribes or individual American Indians. Just 50 years later, fewer than 48 million acres remained in American Indian possession.³¹

Today, “allotment” is a Federal Indian law term of art describing a parcel of land that was subject to fee transfer during the Allotment Era, but over which the federal trusteeship was never fully terminated. The United States acts as the trustee for allotted lands that are held for individual American Indians. These allotted lands are subject to restrictions by the United States, including restraints on encumbrance and alienation,³² but are exempt from taxation. Because these restrictions remain in effect by operation of law, they may or may not be contained in the patent or other title document.³³ The restrictions are not personal to the allottee but generally run with the land to the allottee’s American Indian heirs or devisees.³⁴

C. The Indian Reorganization Act

The devastating effects of the Allotment Era and the Dawes Act were documented in a 1928 paper titled “The Problem of Indian Administration” (better known as the “Meriam Report,” after Lewis Meriam, the project’s technical director). Prepared at the request of Secretary of the Interior Hubert Work, the Meriam Report was compiled from surveys conducted by the Institute of Government Research on the state of life on American Indian reservations nationwide.³⁵ The report detailed the impoverished and unhealthy conditions in which an overwhelming majority of American Indians were forced to live, finding a “vicious circle of poverty” in which economic opportunities for American Indian people were extraordinarily rare.³⁶ Relying in significant part on the findings of the Meriam Report, Commissioner of Indian Affairs John Collier developed a comprehensive series of legislative proposals to reverse the allotment policy and restore tribal self-government, economic development, and cultural pluralism, many of which were later passed by Congress as the 1934 Indian Reorganization Act (IRA).³⁷

The IRA codified a significant shift in Federal Indian policy. Among other things, it provided statutory authority for tribes to acquire (or reacquire) tribal lands—including lands that were originally the subject of treaties with the United States. It also authorized the Secretary of the Interior to acquire land in trust for tribes and individual American Indians, restore remaining surplus lands to tribes, promulgate land conservation regulations, and declare lands as new reservations or extensions of existing ones. Moreover, it indefinitely extended the trust status of allotted American Indian lands.³⁸

The IRA also provided a statutory mechanism for tribes to formally organize governments and adopt constitutions; authorized the issuance of federal charters of incorporation unique to tribes; empowered tribes to prevent the sale, lease, or other disposition of tribal property and to negotiate land matters with federal, state, and local governments; and authorized the United States to restore lands to tribal ownership to be held in trust by the United States for tribes’ exclusive use and benefit.³⁹ To help reverse tribal land loss, the IRA enabled restoration of tribal lands (and acquisition of personal property) but did not allow the tribe “to sell, mortgage, or lease for a period exceeding ten years any of the land included within the limits of the reservation.”⁴⁰

Not all tribes were receptive to the IRA, however, and the statute allowed reservations to exclude themselves from its coverage by vote of a majority of reservation residents.⁴¹ A total of 258 IRA elections were held nationwide, with 181 tribes opting to be subject to the IRA and 77 opting against.⁴² Fourteen other tribes did not conduct elections and were therefore deemed covered by operation of law.⁴³

D. The Indian Claims Commission

Although the IRA restored a measure of tribal self-governance—including control over tribal lands—it did not restore any of the lands previously lost or provide compensation to make up for the damage caused by the Allotment Era. Indeed, tribes originally lacked any forum in which to sue the federal government for actions or inaction that they considered detrimental to their welfare, including treaty violations, confiscation of land, or other grievances.⁴⁴ Their only option was to request, from Congress, special authority to seek money damages in the Court of Claims.⁴⁵ Congress passed more than 140 separate acts granting such authority to tribal nations, demonstrating the need for a more comprehensive claims process.⁴⁶

The Indian Claims Commission (ICC) was thus established in 1946 with broad-based support. American Indians and tribal supporters viewed it as a mechanism and forum for resolving

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³⁰ COHEN’S, supra note 20, § 16.03[2][b] at 1073.

³¹ OFFICE OF INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR, 10 REPORT ON LAND PLANNING 6 (GPO 1935); WILCOMB WASHBURN, RED MAN’S LAND, WHITE MAN’S LAW 145 (Charles Scribner’s Sons 1971).

³² United States v. Dann, 873 F. 2d 1189, 1198 (9th Cir. 1989).

³³ See United States v. Hemmer, 241 U.S. 379, 384 (1916).

³⁴ Ewert v. Bluejacket, 259 U.S. 129, 134 (1922); Bowling v. United States, 233 U.S. 528, 535-36 (1914).

³⁵ THE PROBLEM OF INDIAN ADMINISTRATION ch. 3 (1928), https://narf.org/nill/resources/meriam.html.

³⁶ Id. at ch. 1, https://narf.org/nill/resources/meriam.html.

³⁷ AMERICAN INDIAN LAW DESKBOOK, supra note 23, at 21.

³⁸ Id. at 21.

³⁹ Id. at 21.

⁴⁰ Id. at 20-21.

⁴¹ Id. at 22.

⁴² Id. at 22.

⁴³ Id. at 22.

⁴⁴ CHARLES WILKINSON & THE AMERICAN INDIAN RESOURCES INSTITUTE, INDIAN TRIBES AS SOVEREIGN GOVERNMENTS 13 (American Indian Lawyer Training Program, Inc. (AILTP), 2d ed. 1988).

⁴⁵ Id.

⁴⁶ Id.

historic disputes—a sign of the government’s good faith. Even those who were not particularly in favor of tribal sovereignty generally supported the legislation, viewing it as a major step in a process to eventually terminate federal trusteeship over and responsibility for American Indian affairs.

The 1946 Indian Claims Commission Act gave the ICC jurisdiction over five broad categories of claims, though its express purpose was to provide tribes an opportunity to obtain damages for the loss of tribal lands.⁴⁷ Originally intended to last just 10 years, the ICC’s term was extended repeatedly by Congress so that the ICC could continue its work. The ICC’s term ended on September 30, 1978, at which time all remaining cases were transferred to the Federal Court of Claims.⁴⁸

E. The Termination Era

Even as the ICC took form, Federal Indian policy shifted yet again, returning to the assimilationist philosophy which had previously animated the Allotment Era. Although proponents of this shift often spoke in terms of liberating tribes from federal control, their actions often focused on terminating the sovereign status of tribal governments.⁴⁹ This became known as the Termination Era.

Termination became official federal policy in 1952, when the House of Representatives passed a resolution on directing the Committee on Interior and Insular Affairs to conduct a full investigation into BIA activities. This investigation was to focus on formulating legislative proposals “designed to promote the earliest practicable termination of all federal supervision and control over Indians.”⁵⁰ Before the BIA was able to compile the requested data, Congress would pass six bills terminating tribal governments.

The stated rationale for this new “termination” policy was set out in a 1953 policy statement known as House Concurrent Resolution 108, which proposed to make “the Indians” subject to the same laws as “American citizens” and proposed to require them to assume their “full responsibility.”⁵¹ This rhetoric ultimately served as the basis for congressional action to terminate the tribal status (and lands) of more than 70 tribes and bands.

In some ways, termination repeated the pattern of the Allotment Era. Federal trusteeship over lands was (again) terminated, often followed by subsequent sale to third parties, transfer to private trusts, or transfer to new tribal corporations organized under state law. Federal programs for the terminated tribes were discontinued. State jurisdiction was imposed over terminated tribal lands and those living there. And the sovereign status of many tribal governments was ended.

Criminal and civil jurisdiction was a controversial issue during the Termination Era, with Public Law 280 (PL 280) at the center of the debate.⁵² PL 280 limited tribal civil jurisdiction in Indian Country and transferred criminal jurisdiction in Indian Country from federal to state governments—initially in five states, with provisions for future assumptions of jurisdiction by all others.⁵³ Unlike many other aspects of federal termination policy, however, PL 280 was not particularly extreme. In fact, PL 280 expressly exempted alienation, encumbrance, or taxation of American Indian trust property as well as the regulation of hunting, trapping, and fishing rights protected by treaty, statute or agreement from state jurisdiction.⁵⁴ The statute also required that tribal ordinances and customs not in conflict with state law be given “full force and effect” in civil causes of action.⁵⁵ And, perhaps most significantly, PL 280 did not confer state general civil regulatory powers over American Indian lands despite its substitute of state for federal judicial forms in certain circumstances.⁵⁶

The impact the Termination Era had on land was almost as devastating as the United States’ allotment policies. Hundreds of thousands of acres of tribal trust lands were lost, and many smaller tribes found themselves no longer recognized by the United States as sovereign tribal governments. Even tribes whose sovereign status was not terminated often struggled, unable to exercise their governmental powers after losing their land base.

F. Renewed Focus on Federal Obligations to Tribal Governments

Unlike the Allotment Era, the Termination Era was relatively short-lived. The United States began retreating from termination during the broader civil rights movement, as activists across the country used political, legal, and civil tactics to pressure the United States to reckon with its history of mistreatment toward Native Americans. In 1970, President Nixon formally repudiated the United States’ termination policy, declaring:

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⁴⁷ Id.

⁴⁸ Pub. L. No. 94-465 (1976).

⁴⁹ HOWARD UNIVERSITY SCHOOL OF LAW, A BRIEF HISTORY OF CIVIL RIGHTS IN THE UNITED STATES: THE TERMINATION ERA (1953-1968), https://library.law.howard.edu/civilrightshistory/indigenous/termination (last visited June 13, 2024).

⁵⁰ H.R. REP. NO. 82-2503 (1952).

⁵¹ H. CON. RES. NO. 108, 67 Stat. B132 (1953), https://www.govinfo.gov/content/pkg/STATUTE-67/pdf/STATUTE-67-PgB132-2.pdf.

⁵² Pub. L. No. 83-280, 67 Stat. 588 (1953) (§ 7 repealed and reenacted as amended 1968) (codified as amended at 18 U.S.C. § 1162, 25 U.S.C. §§ 1321-26, 28 U.S.C. § 1360).

⁵³ Id. The states required by Public Law 280 to assume civil and criminal jurisdiction over Federal Indian lands were Alaska (except the Metlakatla Indian Community on the Annette Island Reserve, which maintains criminal jurisdiction), California, Minnesota (except the Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), and Wisconsin. In addition, the federal government gave up all special criminal jurisdiction in these states over American Indian offenders and victims. The states that elected to assume full or partial jurisdiction were Arizona (1967), Florida (1961), Idaho (1963, subject to tribal consent), Iowa (1967), Montana (1963), Nevada (1955), North Dakota (1963, subject to tribal consent), South Dakota (1957-1961), Utah (1971), and Washington (1957-1963). Bureau of Indian Affairs, What is Public Law 280 and Where Does it Apply? (Aug. 19, 2017), https://www.bia.gov/faqs/what-public-law-280-and-where-does-itapply.

⁵⁴ Pub. L. No. 83-280, §§ 2(b), 4(b), 67 Stat. 588 (1953).

⁵⁵ Pub. L. No. 83-280, § 4(c), 67 Stat. 588 (1953).

⁵⁶ Bryan v. Itasca County, 426 U.S. 373, 390 (1976).

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⁵⁷ President Nixon, Special Message on Indian Affairs (July 8, 1970), https://www.epa.gov/sites/default/files/2013-08/documents/presidentnixon70.pdf.

⁵⁸ HOWARD UNIVERSITY SCHOOL OF LAW, A BRIEF HISTORY OF CIVIL RIGHTS IN THE UNITED STATES: THE SELF-DETERMINATION ERA (1968-PRESENT), https://library.law.howard.edu/civilrightshistory/indigenous/selfdetermination (last visited June 13, 2024).

⁵⁹ COHEN’S, supra note 20, § 1.07.

⁶⁰ Id.

⁶¹ United States v. State of Washington, 384 F. Supp. 312, 402 (W.D. Wash. 1974), aff’d and remanded, 520 F.2d 676 (9th Cir. 1975).

⁶² McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020).

⁶³ Id. at 2459.

⁶⁴ Id.

⁶⁵ Id. at 2460.

⁶⁶ Id.

⁶⁷ Id.

⁶⁸ Id. at 2461-62.

Consistent with Allotment Era policies, Congress had chipped away at the Nation’s rights not long after the ink on the treaties was dry. And, over time, ownership of the land described in the treaties became fractured—held by many different people and entities, both American Indian and non–American Indian.⁶⁹ But the Court reaffirmed that Congress, and only Congress, holds the authority to reduce reservations or end reservation status, present fee ownership notwithstanding.⁷⁰ And to terminate a reservation, Congress must “clearly express its intent to do so, commonly with an explicit reference to cession or other language evidencing the present and total surrender of all tribal interests.”⁷¹ Thus, “no matter how many other promises to a tribe the federal government has already broken … [i]f Congress wishes to break the promise of a reservation, it must say so.”⁷²

The State made several arguments that the Nation’s reservation no longer exists. None was successful.

First, the State pointed to federal policy during the Allotment Era,⁷³ arguing that Congress intended to terminate the reservation status of the Nation’s reservation during that time.⁷⁴ Federal allotment procedures did allow tribal citizens to sell their land to American Indians and non–American Indians.⁷⁵ And states have historically argued that such allotments automatically ended reservations. But courts have generally rejected this argument.⁷⁶ Consistent with that precedent, the Supreme Court, noting that Congress did not pass any law terminating all tribal interests in the affected lands, held that the Nation’s reservation survived allotment.⁷⁷ More specifically, the Court ruled that because Congress has defined “Indian Country” to include “all land within the limits of any Indian reservation … notwithstanding the issuance of any patent, and including any rights-of-way running through the reservation,” private landownership within reservation boundaries—including potential ownership by non–American Indians—is not sufficient to disestablish a reservation.⁷⁸

In explaining why this is so, the Court made reference to the United States’ own westward expansion, when the federal government issued land patents which transferred legal title to homesteaders throughout the west.⁷⁹ These same patents are the basis for much of the private land ownership in many states today, yet no one asserts that westward expansion diminished the federal government’s claim to sovereignty over any land.⁸⁰ The Court reasoned that Congress could reserve lands for tribes in much the same way, allowing them to exercise sovereignty over land even if it is no longer held in trust or restricted status for the tribe itself.⁸¹

Next, the State argued that proof of Congress’ disestablishment of the Nation’s reservation could be found in various Allotment Era “intrusions” on the Tribe’s sovereignty, including abolition of the Nation’s courts and a requirement that the President approve any tribal ordinances affecting the Nation’s lands, monies, or citizens.⁸² Yet the Nation still retained the power to collect taxes, operate schools, legislate, and even oversee the allotment process.⁸³ Thus, the Court concluded the Nation retained “significant sovereign functions over the lands in question.”⁸⁴ In fact, the Supreme Court found some of the cited “incursions” served to confirm the Nation’s continuing sovereignty; for example, if the Nation lacked any continuing legislative authority, there would have been no need for Congress to subject tribal legislation to Presidential review.⁸⁵ Additionally, over time, Congress enabled the Nation to resume many of its original functions and authorized the Nation to adopt a constitution and bylaws.⁸⁶ And, most importantly, no Act of Congress ever dissolved the Nation or disestablished its reservation.⁸⁷ In fact, the Supreme Court acknowledged that Congress has moved in the opposite direction by continuing to recognize, strengthen, and support the Nation’s sovereignty and jurisdiction.⁸⁸

The State further argued that historical practices and demographics—such as Oklahoma’s long history of asserting jurisdiction over American Indians and the swift movement of non–American Indians onto reservation lands in the early part of the twentieth century justified a finding that the Nation’s reservation had been disestablished.⁸⁹ The Court dismissed this argument, holding that such evidence can “only be interpretive” and at best “might be used to the extent it sheds light on what the terms found in a statute meant at the time of the its adoption, not as an alternative means of proving disestablishment or diminishment.”⁹⁰ The Court reiterated that “once a reservation is established, it retains that status until Congress explicitly indicates otherwise.”⁹¹ To conclude otherwise, the Court reasoned, would “only serve to allow States and courts to finish work Congress has left undone, usurp the legislative function in the process, and treat Native American claims of statutory right as less valuable than others.”⁹² Moreover, while history is riddled with disrespect for tribal interests, disrespect alone does not

___________________

⁶⁹ Id. at 2462.

⁷⁰ Id.

⁷¹ Id. at 2463 (internal citations and quotations omitted).

⁷² Id. at 2462.

⁷³ See Section II, supra.

⁷⁴ McGirt, 140 S. Ct. at 2463.

⁷⁵ Id.

⁷⁶ Id. at 2464.

⁷⁷ Id.

⁷⁸ Id. (citing 18 U.S.C. § 1151(a)).

⁷⁹ Id. at 2464.

⁸⁰ Id.

⁸¹ Id.

⁸² Id. at 2465-66.

⁸³ Id. at 2466.

⁸⁴ Id.

⁸⁵ Id.

⁸⁶ Id. at 2467.

⁸⁷ Id. at 2468.

⁸⁸ Id. at 2467-68.

⁸⁹ Id. at 2468, 2470 (citing Solem v. Bartlett, 465 U.S. 463 (1984)).

⁹⁰ Id. at 2469.

⁹¹ Id. (citing Solem, 465 U.S. 463).

⁹² Id. at 2470.

amount to clear disestablishment of a reservation.⁹³ The Court concluded that none of the arguments advanced by the State “would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law.”⁹⁴

Next, the State argued the Nation’s reservation was never a true reservation in the first place, but instead a “dependent Indian community.”⁹⁵ The Court swiftly dismissed this argument, declaring that it could not “stand willfully blind before a host of federal statutes” including the treaties that repeatedly promised that the land would be “solemnly guaranteed to the Creek Indians” and be a “permanent home,” “forever set apart,” in which the Nation would be “secured in the unrestricted right of self-government.”⁹⁶ In response to the State’s suggestion that the Nation originally held fee title to its land (rather than title “reserved from sale”),⁹⁷ the Court noted that the land was still subject to restrictions on alienation.⁹⁸ Namely, tribal fee land was reserved from sale because the federal government could not give tribal lands to others or appropriate them for its own purposes without a formal act of confiscation.⁹⁹ Additionally, the Court noted that just as it has “never insisted on any particular form of words which it comes to disestablishing a reservation” it has “never done so when it comes to establishing one.”¹⁰⁰

Finally, the State attempted to cobble together arguments that the Nation’s reservation was no longer American Indian lands by referring to: (i) stray language from an analogous statute (regarding trading on American Indian lands which referred to Creek land as “Indian country” as opposed to an “Indian reservation”), (ii) an unrelated piece of congressional testimony in which the Nation objected “to being classified with the reservation Indians,” and (iii) scattered opinions of agency officials (to bolster their argument that that the Nation’s reservation was never established in the first place).¹⁰¹ Rejecting these contentions, the Court held that “the most authoritative evidence of the [Nation]’s relationship to the land lies not in these scattered references; it lies in the treaties and statutes that promised the land to the Tribe in the first place.”¹⁰² The holding makes clear that treaties themselves, not any sort of extrinsic evidence, carry the day.

Four Justices dissented.¹⁰³ In their view, Congress, the State of Oklahoma, Oklahomans, the Nation, and other tribes all shared an understanding that the Nation’s reservation had been disestablished.¹⁰⁴ Ignoring that understanding, they continued, would harm the State’s ability to prosecute serious crimes and cast doubt on decades of past convictions—creating “chaos” for the state and its citizens.¹⁰⁵ Essentially, the dissent would have held that enforcing the plain language of the treaty terms establishing the Nation’s reservation has simply become too burdensome as a policy matter.

I. Aftermath of McGirt

1. Initial Areas of Uncertainty

The McGirt decision immediately created uncertainty regarding jurisdiction over civil and real property matters, nationwide. Among other things, the case highlighted the fact that large amounts of land once considered to be under state jurisdiction might be (and have been) Indian Country, raising questions about the status of infrastructure and other economic development projects there. After the ruling, for example, the Oklahoma Secretary of State’s primary concern was that major projects might be delayed as officials work through advice and counsel from the governor’s office.¹⁰⁶

2. Initial Federal Response

McGirt created increased workloads for both tribal and federal authorities. With 39 tribes in Oklahoma alone—most of them small and lacking in necessary resources to investigate, prosecute, and adjudicate cases now within their jurisdiction—McGirt caused a new reliance on BIA law enforcement.¹⁰⁷ Additionally, Oklahoma’s federal prosecutors geared up for the potential flood of legal cases, such as serious assaults, homicides, and child abuse, which were previously handled by Oklahoma’s district attorneys.¹⁰⁸

3. Initial Oklahoma Response

Oklahoma’s governor initially denounced McGirt as an attack on Oklahoma’s sovereignty and ordered state agencies to conduct a review of the impacts the decision could have on the State.¹⁰⁹ On September 24, 2020, the McGirt report issued by the

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⁹³ Id. at 2473.

⁹⁴ Id.

⁹⁵ Id. at 2474. The State also made several additional arguments that are irrelevant to the legal interpretation of the Nation’s treaties and are thus not discussed in this paper.

⁹⁶ Id. at 2474-75.

⁹⁷ Id. at 2475.

⁹⁸ Id.

⁹⁹ Id.

¹⁰⁰ Id.

¹⁰¹ Id.

¹⁰² Id. at 2476.

¹⁰³ Id. at 2482 (Roberts, C.J., dissenting). Justice Thomas joined the dissent, except as to a single footnote.

¹⁰⁴ Id. at 2485.

¹⁰⁵ Id. at 2500-02.

¹⁰⁶ Ray Carter, McGirt Ruling Now Negatively Impacting Tribes, OKLA. COUNCIL ON PUB. AFFAIRS (Apr. 12, 2021) [hereinafter Carter], https://ocpathink.org/post/independent-journalism/mcgirt-rulingnow-negatively-impacting-tribes.

¹⁰⁷ Faye C. Elkins, What Does a Recent Supreme Court Decision Mean for Tribal, State, and Federal Law Enforcement?, U.S. DEP’T OF JUST., CMTY. ORIENTED POLICING SERV. OFF. (Jan. 2022), https://cops.usdoj.gov/html/dispatch/01-2022/McGirt_decision.html.

¹⁰⁸ Id.

¹⁰⁹ Carter, supra note 106; Kirke Kickingbird, The Jurisdictional Landscape of Indian Country After the McGirt and Castro-Huerta Decisions, 48 AM. BAR ASS’N HUM. RIGHTS MAG. 4 (July 26, 2023) [hereinafter Kickingbird], https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-end-of-the-rule-oflaw/jurisdictional-landscape-of-indian-country-after-mcgirt-andcastro-huerta-decisions/.

Oklahoma Department of Transportation (ODOT) warned of several potential problems. For example, the report noted that ODOT’s ownership of existing rights-of-way located within the newly recognized American Indian reservation boundaries “could be voidable for want of jurisdiction,” noting that “many miles of state and federal highways that were previously considered outside of ‘Indian Country’ are now considered to run directly through an established Indian Reservation.”¹¹⁰ The report also expressed concern that tribal governments might file inverse condemnation claims against the State of Oklahoma and that ODOT’s ability to condemn new rights-of-way within American Indian reservation boundaries would need to be clarified.

4. Oklahoma v. Castro-Huerta

Two years after McGirt, the Supreme Court decided Oklahoma v. Castro-Huerta, another landmark opinion regarding jurisdiction in Indian Country. This time, the Court ruled in favor of the State of Oklahoma, finding that nontribal citizens who commit crimes in Indian Country can be prosecuted by the State.¹¹¹ The Supreme Court’s reasoning began with the premise that states have jurisdiction to prosecute crimes committed on Native American land unless preempted—a premise characterized by the American Bar Association as a “new default” that reversed “the last 200 years of Indian law.”¹¹² After noting that preemption may occur either (i) under ordinary principles of federal preemption or (ii) when the exercise of state jurisdiction would unlawfully infringe on tribal self-government¹¹³ the Court found that neither type of preemption had occurred and, for that reason, states have jurisdiction to prosecute crimes committed by non-Natives against Natives on Native American land.¹¹⁴ Castro-Huerta has been seen as an answer to some of the concerns raised by the Court in McGirt—namely the “chaos” theory raised by the McGirt dissent and discussed earlier in Section II.H.¹¹⁵

5. Potential Impacts on Transportation Facilities

Since the Supreme Court’s decision in McGirt, several federal courts have wrestled with the impact of tribal treaties on linear infrastructure crossing tribal lands.¹¹⁶ Examples include the following:

• Seneca Nation v. Hochul, 58 F.4th 664 (2d Cir. 2023), a dispute over a 1954 agreement between the Seneca Nation and New York State which granted New York an easement over approximately 300 acres of the Nation’s Cattaraugus Reservation tribal lands. The State used the easement to build a portion of the New York State Thruway and the Nation brought suit claiming violation of treaty rights.¹¹⁷
• Canadian St. Regis Band of Mohawk Indians v. New York, 2022 U.S. Dist. LEXIS 44940 (N.D.N.Y. Mar. 14, 2022), a long-running dispute over ancestral land claims between three Mohawk tribes, the United States, and the State of New York (among others), in which the U.S. District Court for the Northern District of New York applied McGirt in its analysis of various tribal treaties.¹¹⁸
• Swinomish Indian Tribal Cmty. v. BNSF Ry., 664 F. Supp. 3d 1218 (W.D. Wash. 2023), involved tribal claims that a major freight railroad had overburdened its easement across reservation lands, in violation of tribal treaty rights.¹¹⁹ The court held that once put on notice of the relevant treaty provisions, the railroad had an obligation to comply with right-of-way restrictions.¹²⁰ As discussed in more detail in Section IV.C.1, the court is currently evaluating the damages owed by the railroad and has made clear that the Community can recover a portion of the railroad’s net profits resulting from trespass on the reservation.¹²¹
• Cayuga Nation v. Hochul (W.D.N.Y. Case No. 1:23-cv-01283) remains in the early stages of litigation but raises several key post-McGirt issues. The Cayuga Nation filed suit against the State of New York seeking a share of the tolls collected on a portion of the New York State Thruway that passes through the Nation’s 64,000-acre reservation.¹²²

Each of these cases is more fully addressed later in Section IV.C.

III. RESEARCH SCOPE AND METHODS

In carrying out this project, we conducted both traditional legal analysis and survey work. Our findings, conclusions, and recommendations are based on a combination of the two lines of research.

A. Legal Research

Our legal research involved a series of inquiries relating to the McGirt decision. First, we synthesized the history of tribal treaties; allotment, loss, and termination of tribal reservations;

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¹¹⁰ Carter, supra note 106.

¹¹¹ Oklahoma v. Castro-Huerta, 597 U.S. 629, 639-41 (2022).

¹¹² Id. at 2511; Kickingbird, supra note 109.

¹¹³ Castro-Huerta, 597 U.S. at 638.

¹¹⁴ Id.

¹¹⁵ Kickingbird, supra note 109.

¹¹⁶ Several other pending post-McGirt cases consider and/or interpret treaty rights in other contexts (i.e., contexts other than transportation infrastructure), but may nonetheless shed light on the post-McGirt landscape of treaty rights.

¹¹⁷ Seneca Nation v. Hochul, 58 F.4th 664, 667 (2d Cir. 2023).

¹¹⁸ Canadian St. Regis Band of Mohawk Indians v. New York, No. 5:82-CV-0783, 2022 U.S. Dist. LEXIS 44940, at *6-7 (N.D.N.Y. Mar. 14, 2022).

¹¹⁹ Swinomish Indian Tribal Cmty. v. BNSF Ry., 664 F. Supp. 3d 1218, 1222-26 (W.D. Wash. 2023).

¹²⁰ Id. at 1223, 1225-26. The Court also relied on other facts to find the railroad acted willfully, including, for example: the railroad’s knowledge that the railroad’s right of access was restricted; the railroad’s contemplation of an arrangement with an oil company that would significantly exceed the authorized use; and continuing communications between the Community and the railroad. Id. at 1225-26.

¹²¹ Swinomish Indian Tribal Cmty. v. BNSF Ry., No. C15-0543RSL, 2024 U.S. Dist. LEXIS 90442, at *4-6, 16 (W.D. Wash. May 20, 2024).

¹²² Complaint, Cayuga Nation v. Hochul et al., Case 1:23-cv-01283 (W.D.N.Y.), Doc. 1 at ¶ 1 (Dec. 11, 2023).

and jurisdiction over tribal lands. Next, we carefully reviewed the McGirt decision, focusing on those same issues. We then identified case law raising or applying McGirt in the context of disputes over transportation facilities. Finally, we researched additional case law and other legal materials relevant to potential impacts of tribal treaties on transportation facilities, including both operating and proposed projects.

At each step, we relied on standard electronic legal databases, including Lexis, Westlaw, and PACER. As needed, we supplemented those sources with website searches to obtain treaty documents, other historical material, and factual background relevant to ongoing legal disputes, as well as authoritative secondary sources in print form.

B. Survey

1. Selection of Jurisdictions to Be Surveyed

Using federal databases, personal knowledge, and professional judgment, we identified the 20 states with the largest number of federally recognized American Indian tribes: Arizona, California, Colorado, Idaho, Iowa, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Mexico, New York, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Virginia, Washington, and Wisconsin. We decided to reach out to the department of transportation in each one, in the hope that we would get eight to 12 favorable responses within a reasonable timeframe.

We chose not to include Alaska and Hawaii in the survey group. Although both states have large indigenous populations, they lack the same treaty framework applicable to tribal nations in the continental United States (and addressed in McGirt).

2. Development of Survey Instrument

We then developed a survey instrument for outreach to the 20 departments of transportation listed in Section III.B.1. The survey was designed to solicit information on the following topics:

• Situations in which tribal treaty claims or disputes affected the development of new transportation facilities;
• Situations in which tribal treaty claims or disputes affected the operation of existing transportation facilities;
• The resolution of any tribal treaty disputes;
• Best practices for identifying and resolving tribal treaty disputes; and
• Departmental and other state government resources for addressing tribal treaty disputes.

The review panel reviewed and approved the survey instrument.

3. Conduct of Survey

After the survey instrument was developed and approved, we conducted internet research to identify tribal liaisons or coordinators within each state transportation department. In some instances, state transportation departments maintain a webpage dedicated to tribal transportation issues.¹²³ Some state transportation agencies also contain a branch dedicated to working with tribal governments in the context of transportation planning, funding, and operation of facilities.¹²⁴ Others identify a representative located in a regional or cultural resources office of the state transportation department as the lead on tribal issues, or an individual within a cultural resources office.¹²⁵

After identifying appropriate departmental representatives, we sent an introductory e-mail message to each one. The e-mail explained that we were working with the Transportation Research Board, a division of the National Academies of Sciences, Engineering, and Medicine, to prepare a report on how U.S. treaties with Native American tribes impact the development and operation of transportation facilities. It further explained that the recipient had been identified as someone who might be able to share in a brief interview the experience of her or his agency as it sought to navigate issues raised by Native American tribal treaties in their state. And it requested their availability for a short discussion of their agency’s efforts in working with Native American tribes, noting an expected interview duration of approximately 15 minutes. The e-mail also requested that, if the recipient was not the right person to help us in our efforts, that person identify a different person within their agency that might be better suited to helping us.

When an individual responded affirmatively to our introductory e-mail message, we sought to schedule a time to speak in a video or telephone conference. In a few instances, the recipient referred us to a different person in their agency or informed us that the request would be handled out of the agency’s executive office. Some recipients requested a copy of the interview questions in advance, which we sent via e-mail.

Several recipients did not respond at all. To these, we sent follow-up e-mail messages, or, where a telephone number was available, we made follow-up telephone calls. If there was no response to this follow-up outreach, we sent a copy of the interview questions to the individual and informed them that we would welcome written answers to our questions in addition to or in lieu of a telephone or video interview.

Representatives of nine state departments of transportation responded to our outreach (Table 1). In total, these states are home to 144 federally recognized American Indian tribes, approximately 25% of the federally recognized American Indian tribes in the United States.

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¹²³ See, e.g., Arizona Tribal Transportation, https://aztribaltransportation.org/home (last visited June 13, 2024).

¹²⁴ See, e.g., CalTrans Native American Liaison Branch (NALB) within the Office of Equity, Sustainability, and Tribal Affairs, https://dot.ca.gov/programs/esta/nalb (last visited June 13, 2024); Native American Cultural Studies Branch within the Project Delivery Program—Division of Environmental Analysis, https://dot.ca.gov/programs/environmentalanalysis/cultural-studies/native-american-cultural-studies (last visited June 13, 2024).

¹²⁵ See, e.g., Iowa DOT’s Cultural Resources Staff, https://iowadot.gov/ole/About/Staff#552832652-cultural-resources (last visited June 13, 2024).

Table 1. States Participating in Research Interviews

Our interviews with state representatives typically took between 15 and 45 minutes and were conducted over the Webex video conferencing platform. One state (Oklahoma) provided written responses to our interview questions in addition to participating in a video interview. Two states (Michigan and Iowa) provided links to or electronic copies of reference material that we have reviewed and incorporated into this report.

IV. FINDINGS

A. Treaty Parties and Federally Recognized Tribal Governments

The tumultuous relationship between tribal and nontribal communities during the Nation’s founding necessitated action to resolve, or at the very least minimize, conflict. Nearly 400 treaties between the United States and tribal governments were signed between 1787 and 1871, often with that goal in mind—peace in exchange for land.¹²⁶ And in an effort to find a peaceful resolution to land disputes—albeit after horrific violence had already occurred, in many cases—the federal government used treaty negotiations to pave the way for negotiated acquisition of large portions of the continental United States.¹²⁷ Many of these treaties reserved parcels of land for the tribal signatories and guaranteed they would be protected and provided with necessities such as food, clothing, and supplies.¹²⁸ This was the beginning of what would eventually be described as the federal trust responsibility to (or trust relationship with) American Indian tribes.¹²⁹

1. Modern Tribal Governments

There are currently 574 federally recognized American Indian tribes in the United States. All are independent sovereigns, subject to the plenary power of Congress. The essence of tribal sovereignty is the ability to govern and to protect and enhance the health, safety, and welfare of tribal citizens. Tribal governments maintain the power to determine their own governance structures (including, without limitation, the authority to tax, regulate land use, and punish crimes), make determinations regarding tribal citizenship, govern access to tribal lands (including the power of exclusion), and even enforce laws through tribal law enforcement and tribal court systems. Each tribal government is unique, with its own leadership structure, culture, history, traditions, citizenship, laws, land, enterprises, and relationship with state and local governments.

In addition, tribal governments are responsible for a broad range of governmental activities on tribal lands, including education, law enforcement, judicial systems, health care, environmental protection, natural resource management, and the development and maintenance of infrastructure such as housing, roads, bridges, sewers, public buildings, telecommunications, broadband and electrical services, and solid waste treatment and disposal.

The right of tribes to govern their citizens and territories flows from a preexisting sovereignty most accurately described as being limited, but not abolished, by their existence within the territorial bounds of the United States.¹³⁰ Perhaps the most basic principle of all American Indian law, supported by a host of decisions, is that those powers lawfully vested in an American Indian nation are not, in general, delegated powers granted by express acts of Congress, but rather “inherent powers of a limited sovereignty which has never been extinguished.”¹³¹ In other words, tribes began their relationship with the federal government possessing the sovereign powers of independent nations. They only came under the authority of the United States through the Constitution, the common law doctrine of discovery,¹³² and treaties between tribes and the federal government. These treaties permitted, then protected, continued internal tribal governance.

Despite years of changing Federal Indian policy—sometimes aimed at assimilating tribes and tribal citizens into mainstream society, other times aimed at supporting and strengthening tribal self-determination and self-governance—tribal nations,

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¹²⁶ THE RIGHTS OF INDIANS AND TRIBES, supra note 1, at 30.

¹²⁷ Id.

¹²⁸ Id.

¹²⁹ Cherokee Nation v. Georgia, 30 U.S. 1, 2 (1831) (describing tribes as “domestic dependent nations … in a state of pupilage,” with a relationship to the United States resembling “that of a ward to his guardian.”).

¹³⁰ COHEN’S, supra note 20, § 4.01.

¹³¹ Id.

¹³² The doctrine of discovery was developed by European nations to justify the process of colonization and dominion and provides “that newly arrived Europeans immediately and automatically acquired legally recognized property rights in native lands and also gained government, political, and commercial rights over the inhabitants without the knowledge or the consent of the Indigenous peoples.” Blake A. Watson, The Doctrine of Discovery and the Elusive Definition of Indian Title, 15 LEWIS & CLARK L. REV. 995, 996-97 (Feb. 14, 2012), https://law.lclark.edu/live/files/10656-lcb154art5watsonpdf.

including those who executed treaties with the United States, maintain their sovereign status today.

2. Relationships Between Modern Tribal Governments and Historic Tribal Treaty Parties

There is ample publicly available information linking modern, federally recognized tribal governments with historic tribal treaty parties. The National Archives has cataloged most, if not all, known tribal treaties in a series titled “Ratified Indian Treaties, 1722–1869,” which can serve as an effective foundation for research and outreach.¹³³ The catalog includes the names of the signatory tribes as well as the general or specific areas covered by each treaty.¹³⁴ Other tribal treaty databases include similar information; some even categorize treaties based on potential “successors in interest.”¹³⁵ Tribes themselves are often able to confirm information in these databases. And the BIA can also serve as a valuable resource for information on treaty signatories and political succession.

B. Continuing Obligations Under Tribal Treaties

1. Congress Has Plenary Power Over American Indian Affairs, Including Authority to Enter Treaties and to Create Reservations

The courts have recognized that Congress has “plenary and exclusive authority” over American Indian affairs.¹³⁶ The term “plenary” indicates the breadth of congressional power to legislate in the area of American Indian affairs, and the term “exclusive” refers to the supremacy of federal over state law in this area.¹³⁷ The term “plenary power” has also been employed as a shorthand for general federal authority to legislate on health, safety, and morals within Indian Country, similar to states’ police powers over non–American Indians.¹³⁸ Courts have held this broad congressional authority includes imposition of federal policy directly on tribes without their consent.¹³⁹

The contours of Congress’ plenary power are evident in the contest of preemption of state law. Congress’ power to set policy in American Indian affairs supersedes conflicting state laws or state constitutional provisions. In other words, Congress may constitutionally enact legislation, execute provisions of a treaty, or ratify agreements with a tribe, even if doing so affects state interests.¹⁴⁰ For example, congressional action may bar operation of state hunting and fishing laws, regulatory or tax laws, and even laws governing such traditional state areas of concern such as child welfare.

2. Treaty Obligations Cannot Be Altered, nor Reservations Disestablished, Without Express Congressional Action

After McGirt, it is clear that treaties between the United States and American Indian tribes remain the law of the land. Reservations established by treaty can only be disestablished by clear congressional action.¹⁴¹ Shifting demographics and other changed conditions do not “by themselves” “suffice to disestablish a reservation.”¹⁴² Absent clear congressional intent, reservations—and the treaty obligations tied to them—remain intact.

3. Tribal Governments Retain Regulatory Authority Within Their Reservations

Tribes have plenary and exclusive power over their citizens and their territory, subject only to limitations imposed by federal law. Limitations may come from treaties and statutes, if (and only if) clear and unequivocal.¹⁴³ The powers of American Indian tribes over their own citizens are broad and generally exclusive of both federal and state power.

For example, in 1981 the U.S. Supreme Court in Montana v. United States reviewed the authority of the Crow Tribe to regulate hunting and fishing by noncitizens of the tribe on non–American-Indian-owned fee lands within the boundaries of the Crow Reservation.¹⁴⁴ First, the Supreme Court decided that the State of Montana, not the tribe, owned the bed of the Big Horn River where it crossed the reservation.¹⁴⁵ Further, in the view of the passage of allotment legislation, the Supreme Court found that the tribe lacked treaty-based or statutory rights to regulate hunting and fishing by non–American Indians on non–American-Indian-owned reservation fee lands.¹⁴⁶ Next, the Supreme Court addressed the tribe’s inherent sovereign authority to exercise regulatory jurisdiction on non–American Indian fee lands within reservation boundaries declaring that “exercise

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¹³³ National Archives, Indian Treaties, 1789–1869, https://catalog.archives.gov/id/299798.

¹³⁴ Id.

¹³⁵ Oklahoma State University Tribal Treaties Database: Treaties, Agreements, and Documents, https://treaties.okstate.edu/treaties/?&type=1 (last visited June 13, 2024); Oklahoma State University Tribal Treaties Database: Successors in Interest, https://treaties.okstate.edu/tribes/successors-in-interest/ (last visited June 13, 2024).

¹³⁶ Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 788-90 (2014) (noting breadth of congressional power and corresponding judicial role of restraint); United States v. Lara, 541 U.S. 193, 200 (2004); Washington v. Confederated Bands & Tribes of the Yakima Nation, 439 U.S. 463, 470 (1979).

¹³⁷ COHEN’S, supra note 20, § 5.02.

¹³⁸ Id.

¹³⁹ Examples of other (albeit rare) instances in which Congress exercises similar plenary powers include the administration and government of U.S. territories and possessions, the District of Columbia, and federal enclaves such as post offices, national parks, and military installations. Id.

¹⁴⁰ Id.

¹⁴¹ McGirt, 140 S. Ct. at 2463.

¹⁴² Id. at 2468.

¹⁴³ See, e.g., Mattz v. Arnett, 412 U.S. 481, 505 (1973) (statute insufficiently explicit to terminate reservation); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (congressional waiver of tribal sovereign immunity must be “express and unequivocal”); Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 790 (2014) (congressional intent to abrogate tribal sovereign powers must be clear and unequivocal).

¹⁴⁴ 450 U.S. 544 (1981).

¹⁴⁵ Id. at 556-57.

¹⁴⁶ Id. at 558-63.

of tribal power beyond what is necessary to protected tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation.”¹⁴⁷ Because regulation of hunting and fishing by noncitizens on non–American Indian fee lands within reservation boundaries bore “no clear relationship to tribal self-government or internal relations,” the Supreme Court found such regulation was not part of the Crow Tribe’s inherent sovereign authority.¹⁴⁸

The Supreme Court thus asserted as a general proposition that the “inherent sovereign powers of an American Indian Tribe do not extend to the activities of nonmembers of the tribe” save for two exceptions: (1) civil jurisdiction over non–American Indians on their reservations, even on non–American Indian fee land via regulation through taxation, licensing or other means, of the activities of noncitizens who enter consensual relationships with the tribe or its citizens, and through commercial dealing, contracts, leases or other arrangements and (2) exercising of civil authority over conduct of non–American Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.¹⁴⁹

Set against the landscape of prior cases affirming broad tribal powers,¹⁵⁰ the two exceptions enumerated in Montana are congruent with the general proposition that tribes retain broad authority in Indian Country over the conduct of American Indians and non–American Indians alike, limited in the rare instance where no significant tribal interest is at stake with respect to the conduct of noncitizens on reservation lands owned in fee by non–American Indians.¹⁵¹

4. Continuing Treaty Obligations Exist in Most Regions of the United States

McGirt makes clear that treaties impose continuing obligations. According to the BIA, between 1778 when the first treaty was made with the Delawares, to 1871, when Congress ended the treaty-making period, the Senate ratified 370 treaties with tribes across (what is now) the continental United States.¹⁵² Unless superseded by congressional legislation, the land grants and reservation boundaries contained therein still stand to this day. McGirt confirms that continuing treaty obligations may exist even where current demographics do not conform to popular expectations for “Indian Country.”¹⁵³

C. Tribal Treaties Have the Potential to Impact Operation and Development of Transportation Facilities

Next, we examine some examples of how tribal treaties have affected—and may continue to affect—transportation facilities. This discussion includes an analysis of how treaties interact with the operation of transportation projects already constructed and evaluation of how treaties can influence the siting and permitting of future development. We take the lessons from existing case studies on how treaties and other tribal rights under statutory schemes and inherent sovereignty have impacted infrastructure and use those examples to consider how treaty rights may be used by tribes to influence the operation and construction of transportation facilities.

1. Operation of Existing Transportation Facilities

Treaties may interact with the operation of existing transportation facilities in a variety of ways. Here, we focus on the potential for treaties to impact operation of rights-of-way, the power of treaty rights to force modifications to infrastructure, the contours of tribal regulatory authority over transportation facilities, and the competing roles of tribal and nontribal law enforcement.

a. Rights-of-Way

Rights-of-way serve as the legal basis for many forms of transportation infrastructure, from utility lines to roadways to railroads. A renewed understanding of the breadth of Indian Country, based on long-standing treaties, may raise questions about the ongoing validity of some rights-of-way. Rights-of-way that conflict with treaties or treaty rights (whether directly or indirectly) may be invalid, and any infrastructure constructed therein may constitute an illegal encroachment.

The Takings Clause of the U.S. Constitution, which requires “just compensation” for the taking of property, may provide one means of resolving such issues. But many tribes will understandably have an interest in removing encroaching infrastructure altogether.¹⁵⁴ Indeed, BIA regulations clearly identify the occupancy of American Indian land without a required right-of-way as “trespass” and authorize BIA to “take action to recover possession, including eviction, on behalf of the Indian landowners and pursue any additional remedies available under applicable law.”¹⁵⁵ Under the same provision, American Indian landowners are also authorized to pursue any available remedies under applicable law, including tribal law.¹⁵⁶

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¹⁴⁷ Id. at 564.

¹⁴⁸ Id. at 564-65.

¹⁴⁹ Id. at 565-66.

¹⁵⁰ See, e.g., United States v. Wheeler, 435 U.S. 313 (1978) (holding that tribal criminal jurisdiction over a tribe’s own members arises out of the tribe’s retained sovereignty, and therefore the Double Jeopardy Clause of the U.S. Constitution does not bar prosecution by both federal and tribal courts for the same acts); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978) (congressional waiver of tribal sovereign immunity must be “express and unequivocal”); California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (finding that a state law restricting gambling could not be applied to a reservation’s bingo operations).

¹⁵¹ COHEN’S, supra note 20, § 4.02.

¹⁵² Bureau of Indian Affairs, Does the United States Still Make Treaties with Indian Tribes? (Nov. 15, 2019), https://www.bia.gov/faqs/doesunited-states-still-make-treaties-indian-tribes#:~:text=Between%201778%2C%20when%20the%20first,States%20Senate%20ratified%20370%20treaties.

¹⁵³ McGirt, 140 S. Ct. at 2468.

¹⁵⁴ See U.S. CONST. amend. V (“[N]or shall private property be taken for public use, without just compensation.”).

¹⁵⁵ 25 C.F.R. § 169.413.

¹⁵⁶ Id.

Seneca Nation v. Hochul, referenced earlier in Section II.I.5, provides one example of these issues. There, the Seneca Nation alleged the New York State Thruway lacked a valid easement across reservation lands.¹⁵⁷ The suit alleged that continuing use of the Thruway “violates the federal treaties and laws establishing the Reservation and protecting it against alienation … and also violates federal law regulating easements across Indian lands.”¹⁵⁸ While the opinion of the U.S. Court of Appeals for the Second Circuit was focused on whether the Nation could overcome various procedural hurdles such as collateral estoppel and the Eleventh Amendment, the court’s analysis affirms the primacy of treaty analysis in such disputes. It is notable that the Second Circuit found the Nation’s lawsuit was properly concerned with the ongoing effect of the invalid easement as opposed to narrowly focusing on whether the 1954 grant of the easement violated federal law.¹⁵⁹ The Second Circuit looked to the language of the treaty which states that the Nation’s “free use and enjoyment” of its lands shall not be disturbed.¹⁶⁰ Accordingly, the Second Circuit found that the heart of the Nation’s claims was focused not on past harms but on the continued burden placed on its lands by the Thruway easement. Likewise, the Second Circuit found that the relief sought was properly prospective in that the Nation asked the court to compel defendants to obtain a valid easement that will in the future equitably compensate the Nation for the future use of its lands.¹⁶¹

The Second Circuit also dismissed New York’s argument that the suit was an improper quiet title action.¹⁶² The Second Circuit found that because the Nation holds fee title to the land under the treaty, New York State’s only interest is a possessory one granted by the easement. And because the State has not historically governed the land in question, the action was not the functional equivalent of a quiet title action.¹⁶³

In another dispute involving the New York Thruway (also referenced in Section II.I.5, above), the Cayuga Nation has sued the State of New York in the U.S. District Court for the Western District of New York on grounds that continued operation of the Thruway through the Nation’s reservation, without a valid right-of-way approved by the United States, violates the Treaty of Canandaigua.¹⁶⁴ In the Nation’s view, the State should be required to obtain a federal right-of-way “so as to bring continued public use of, and benefit from, those Indian lands into compliance with federal law on terms that will equitably compensate the Nation pro rate for future use of its lands; or … be enjoined from collecting tolls going forward.”¹⁶⁵ If successful, the lawsuit may directly result in a system of apportioning tolls to the Nation as compensation for use of the Nation’s reservation land. This will likely be among the most significant post-McGirt cases specifically addressing transportation facilities.

Some rights-of-way are valid for a finite period, raising questions about appropriate remedies and procedures once the right-of-way expires—particularly if a tribe wants to be rid of the infrastructure occupying its land. BIA regulations address the issue as follows:

[W]e may treat the unauthorized possession as a trespass under applicable law and will communicate with the Indian landowners in making the determination whether to treat the unauthorized possession as a trespass. Unless the parties have notified us in writing that they are engaged in good faith negotiations to renew or obtain a new right-of-way, we may take action to recover possession on behalf of the Indian landowners, and pursue any additional remedies available under applicable law, such as a forcible entry and detainer action. The holdover time will be charged against the new term.¹⁶⁶

Thus, while the opportunity for a tribe to negotiate a mutually agreeable resolution exists, tribes and tribal citizens can also seek assistance from BIA to remedy trespass and seek recovery of land for tribal purposes. For instance, in January 2023, the Lac du Flambeau Band of Lake Superior Chippewa Indians barricaded roads on its reservation in Wisconsin after negotiations to extend expired right-of-way agreements broke down.¹⁶⁷ Nearby nontribal landowners filed suit, seeking an injunction to reopen the roads based on violations of the Federal-Aid Highway Act and the Tribal Transportation Program and nuisance.¹⁶⁸ In March 2023, the Band reached a temporary agreement with the Town to reopen the roads for 90 days in exchange for $60,000 while negotiations continue for a long-term resolution.¹⁶⁹ Meanwhile, BIA, at the request of the Band, removed the roads from the National Tribal Transportation Facilities Inventory (NTTFI), reasoning that the Band had never received public funding for the roads.¹⁷⁰ Removal of the roads from the NTTFI made the roads ineligible for Tribal Transportation Program funds but also removed the obligation under BIA regulations that listed roads “be open and available for public use.”¹⁷¹

On August 15, 2023, the U.S. District Court for the Western District of Wisconsin dismissed the landowners’ suit for failure

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¹⁵⁷ Seneca Nation, 58 F.4th at 667.

¹⁵⁸ Id. The present suit follows from a prior proceeding (referred to as “Seneca I”), dismissed on procedural grounds, in which the Tribe sought to invalidate the easement based on the State’s failure to comply with the Non-Intercourse Act. Id.

¹⁵⁹ Id. at 670.

¹⁶⁰ Id.

¹⁶¹ Id. at 672.

¹⁶² Id.

¹⁶³ Id. at 673.

¹⁶⁴ Complaint, Cayuga Nation v. Hochul et al., Case 1:23-cv-01283 (W.D.N.Y.), Doc. 1 at ¶ 3 (Dec. 11, 2023) (citing Art. II, Nov. 11, 1794, 7 Stat. 44,445).

¹⁶⁵ Id. at ¶ 5.

¹⁶⁶ 25 C.F.R. § 169.410.

¹⁶⁷ Pollard v. Johnson, No. 23-cv-135-wmc, 2023 U.S. Dist. LEXIS 143678, at *4-5 (W.D. Wis. Aug. 15, 2023).

¹⁶⁸ Id. at *5-6.

¹⁶⁹ Associated Press, Federal government lawsuit accuses town of trespassing on Lac du Flambeau tribal lands, PBS WIS. (June 2, 2023), https://pbswisconsin.org/news-item/federal-government-lawsuitaccuses-town-of-trespassing-on-lac-du-flambeau-tribal-lands/; see also Pollard, 2023 U.S. Dist. LEXIS 143678, at *5 n.2 (explaining that “[s]ince March 13, 2023, the roadways have been open pursuant to negotiated, temporary access permits issued by the Tribe to the Town” but it is unclear what happened when the permits expired on June 13, 2023).

¹⁷⁰ Pollard, 2023 U.S. Dist. LEXIS 143678, at *6.

¹⁷¹ 25 C.F.R. §§ 170.5, 170.114.

to “plead a viable, federal cause of action” in part because the inclusion of the roads on the NTTFI served as one of the bases for federal court jurisdiction.¹⁷² The district court further reasoned that the Tribal Transportation Program did not provide a cause of action for the landowners as it was intended to “assist tribes in providing safe and adequate transportation and public road access to and within Indian lands . . . while at the same time respecting Tribal self-determination and self-governance.”¹⁷³ Despite interrelated issues of Federal Indian law, the state law nuisance claims did not confer federal jurisdiction, so the district court dismissed the lawsuit.¹⁷⁴

Separately, the Town sued BIA over the decision to remove the roads from NTTFI.¹⁷⁵ In addition, the federal government sued the Town arguing that it continues to trespass on tribal land and must pay damages.¹⁷⁶ The landowners’ state law claims could still presumably be pursued in state court. The Band has since enacted a permitting ordinance to enable landowners to use the roads for a fee, but conditioned issuance of any permits on payment of $9.6 million in damages to resolve past trespass.¹⁷⁷ Thus, the dispute continues over the appropriate resolution of this clash between the Band’s sovereignty and treaty-established reservation and the reliable provision of transportation services to non–American Indians living in the region. The conflict shows how disputes between sovereign tribes and surrounding communities can interfere with transit across tribal lands and underscores the importance of maintaining respectful sovereign-to-sovereign relationships to ensure smoothly functioning transportation facilities across jurisdictions.

Another example involves a long-running dispute between the Swinomish Indian Tribal Community and BNSF Railway Co. (BNSF) over railroad operations on the Community’s reservation.¹⁷⁸ BNSF built a railroad line across the Community’s reservation in 1889 without permission from the Community, the Department of the Interior, or Congress.¹⁷⁹ In the 1970s, BNSF sought to compel the Secretary of the Interior to belatedly grant a right-of-way across the reservation and the Community filed suit for trespass seeking damages and an injunction to remove the railroad line.¹⁸⁰ After over a decade of litigation, the Community, the United States, and BNSF reached a settlement that included a right-of-way granted subject to $125,000 in damages and retroactive rent, continued payment of rent of $10,000, “subject to periodic increases based on the Consumer Price Index and changes in property values,” and restrictions on the number of trains and number of cars that may be run across the reservation.¹⁸¹ The agreement limited BNSF to one eastbound train and one westbound train of 25 cars or less each day, unless more is required by shipper needs and agreed to by the Community in writing.¹⁸² The easement agreement also required BNSF to submit annual cargo reports to the Community.¹⁸³ The right-of-way and the easement agreement had an initial term of 40 years with two 20-year extensions at the option of BNSF, resulting in a termination no later than 2071.¹⁸⁴

In September 2012, the Community learned from a news article that BNSF had started running 100-car trains across the reservation.¹⁸⁵ When confronted by the Community about the violation of the terms of the right-of-way and the easement agreement, BNSF admitted to running trains of about 102 cars in each direction every other day and indicated that in the near term it may increase the frequency of these trains from four to six times weekly to as much as 10 times weekly.¹⁸⁶ BNSF did not ask permission for any of these changes.¹⁸⁷ Despite the Community raising repeated objections to BNSF’s violations of the easement agreement, including concerns about rail transportation of crude oil and train accidents leading to spills and fires, BNSF refused to adhere to the easement agreement or provide annual cargo reports.¹⁸⁸

The Community sued BNSF to enforce the easement agreement, the U.S. District Court for the Western District of Washington ruled in favor of the Community, and the U.S. Court of Appeals for the Ninth Circuit affirmed.¹⁸⁹ The Ninth

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¹⁷² Pollard, 2023 U.S. Dist. LEXIS 143678, at *4, 6-9.

¹⁷³ Id. at *10-11.

¹⁷⁴ Id. at *12-16.

¹⁷⁵ Crystal Owens, Wisconsin Town Wants Roads Back on Tribal Funding List, LAW360 (Aug. 8, 2023), https://www.law360.com/nativeamerican/articles/1708745?nl_pk=028113ea-a072-42b0-8a7d-23ef9ccff431&utm_source=newsletter&utm_medium=em%E2%80%A62/8.

¹⁷⁶ Associated Press, Federal government lawsuit accuses town of trespassing on Lac du Flambeau tribal lands, PBS WIS. (June 2, 2023), https://pbswisconsin.org/news-item/federal-government-lawsuitaccuses-town-of-trespassing-on-lac-du-flambeau-tribal-lands/; see also Pollard, 2023 U.S. Dist. LEXIS 143678, at *7 (“The United States subsequently filed a trespass action against the Town of Lac du Flambeau, asserting claims for trespass and ejectment under the Indian Right-of-Way Act. United States v. Town of Lac du Flambeau, 23-cv-335-wmc.”).

¹⁷⁷ Danielle Kaeding, Tribal leader says town must pay nearly $10M before it can access roads under tribal ordinance, WIS. PUB. RADIO (Dec. 11, 2023), https://www.wpr.org/economy/lac-du-flambeau-triballeader-pay-access-roads-under-ordinance.

¹⁷⁸ Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., 951 F.3d 1142, 1146-47 (9th Cir. 2020).

¹⁷⁹ Id. Over 100 years of factual history for the case involves multiple corporate predecessors to BNSF, but we refer to them all as BNSF for simplicity. Id.

¹⁸⁰ Id. at 1148.

¹⁸¹ Id.

¹⁸² Id. at 1148-49.

¹⁸³ Id. at 1149.

¹⁸⁴ Id.

¹⁸⁵ Id. at 1149-50.

¹⁸⁶ Id. at 1150.

¹⁸⁷ Id.

¹⁸⁸ See id. at 1150-51 (citing a letter from the Community that recounted “numerous recent catastrophic spills and fires in the United States and Canada resulting from derailment of trains carrying Bakken crude oil,” including a derailment that occurred in Seattle while traveling at a speed of less than five miles per hour, well below the max speed of 10 miles per hour contemplated for BNSF trains crossing the Community’s reservation).

¹⁸⁹ Id. at 1151.

Circuit rejected BNSF’s arguments that the Interstate Commerce Commission Termination Act of 1995 (ICCTA) preempted, abrogated, or repealed the easement agreement, the underlying federal common law, the Treaty of Point Elliott, and the Indian Rights-of-Way Act.¹⁹⁰ While ICCTA broadly preempts state and local regulations of the railroad industry, the law is routinely harmonized with other federal laws and says nothing to eliminate the Community’s rights under the Treaty of Point Elliott or disavow the separate federal regulatory regime for rights-of-way on American Indian lands.¹⁹¹ Thus, the Ninth Circuit concluded that the Community “has the right to pursue injunctive relief to enforce the terms of the Easement Agreement.”¹⁹²

In March 2023, the district court ruled that BNSF “willfully, consciously, and knowingly” trespassed on tribal land “in pursuit of profits.”¹⁹³ The district court determined that this entitled the Community to “equitable remedies, including the recovery from BNSF of profits made by the unlawful entry” in an amount to be determined in the next phase of trial.¹⁹⁴ This ruling came less than two weeks after a BNSF train derailed on the Community’s reservation, spilling 5,000 gallons of diesel fuel.¹⁹⁵ While cleanup efforts removed contaminated soil and groundwater, the incident serves as an example of the potential impacts of transporting hazardous materials that tribes like the Community may try to avoid.¹⁹⁶

More recently, the district court ruled on cross-motions for summary judgment that “[t]here are genuine issues of fact regarding the appropriate allocation of profits arising from the trespass that preclude summary judgment on that issue,” but it did narrow the scope of the dispute over the appropriate amount recoverable by the Community.¹⁹⁷ The district court agreed with the Community that it is entitled to the share of BNSF’s net profits obtained by trespassing on the reservation—an amount the Community estimated at $450 million.¹⁹⁸ However, the district court also found that BNSF’s profits were not entirely contingent on the trespass, such that the Community was not entitled to the full amount it requested.¹⁹⁹

The district court reasoned that “some distance-based apportionment can be found that will ensure that BNSF is not penalized but will also not leave BNSF in a better position than it would have occupied had there been no trespass.”²⁰⁰ In addition, the district court held that BNSF, in establishing the profits recoverable by the Community, would be limited to deducting variable costs that fluctuate with changes in traffic volumes associated with particular shipments.²⁰¹ Non-variable costs such as overhead, interest, or income tax will not be deductible.²⁰² Finally, the Community may be entitled to consequential gains from BNSF’s profits used for investment after taxes.²⁰³ As of the date of this report, the total amount owed by BNSF to the Community remains to be determined. But it is already clear that the case serves as an example of just how substantial the financial repercussions can be for those whose transportation facilities trespass on reservation lands. Irrespective of the ultimate dollar amount awarded, this example underscores the importance of cooperating with tribes and adhering to agreements with tribes with treaty-established reservations for use of their land.

Another significant example involves the right-of-way for a pipeline now owned by Marathon Petroleum (Marathon)²⁰⁴ that crosses through the Fort Berthold Indian Reservation. When the pipeline right-of-way expired, the Mandan, Hidatsa, and Arikara Nation negotiated an agreement to retroactively renew it in exchange for trespass damages.²⁰⁵ However, the agreement did not renew portions of the right-of-way across lands held by individual allottees, and in October 2018, when negotiations with those landowners failed, the allottees filed a class action for trespass, breach of easement agreement, and unjust enrich-

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¹⁹⁰ Id. at 1151-61.

¹⁹¹ Id.

¹⁹² Id. at 1161.

¹⁹³ Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., 664 F. Supp. 3d 1218, 1226 (W.D. Wash. 2023).

¹⁹⁴ Id.

¹⁹⁵ Associated Press, BNSF train derailment spills diesel fuel on tribal land in Washington state, NBC NEWS (Mar. 16, 2023), https://www.nbcnews.com/news/us-news/bnsf-train-derailment-spills-diesel-fuel-tribal-land-washington-rcna75387.

¹⁹⁶ See U.S. EPA, BNSF Swinomish Channel Derailment UNIFIED COMMAND, https://www.epa.gov/newsreleases/bnsf-swinomish-channel-derailment-unified-command (Mar. 18, 2023) (providing news media updates on the train derailment and cleanup efforts, the costs of which BNSF is responsible for).

¹⁹⁷ Swinomish Indian Tribal Cmty. v. BNSF Ry., No. C15-0543RSL, 2024 U.S. Dist. LEXIS 90442, at *16 (W.D. Wash. May 20, 2024).

¹⁹⁸ Id. at *4-5.

¹⁹⁹ Id. at *5-6. The Community sought disgorgement of $445 million of BNSF’s profits for its operation of the entire 1,500-mile route over nearly a decade (before adjustment to present day dollars) for what it sees as ill-gotten gains that could not have been obtained without trespassing on the Community’s territory. Plaintiff’s Motion for Partial Summary Judgment on Disgorgement, Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., No. 2:15-cv-00543-RSL (W.D. Wash. Mar. 29, 2024). BNSF argued that the Community is entitled to $7.3 million at most because that is allegedly the fair market value under the terms of the railroad’s right-of-way easement agreement with the Community and only a small portion of the full route actually trespassed on the Community’s land. BNSF Railway Company’s Motion for Summary Judgment, Swinomish Indian Tribal Cmty. v. BNSF Ry. Co., No. 2:15-cv-00543-RSL (W.D. Wash. Mar. 29, 2024). The district court’s decision therefore rejected BNSF’s length of the right-of-way calculation, but also disagreed with the Community’s assertion that it deserved the full $445 million.

²⁰⁰ Swinomish, 2024 U.S. Dist. LEXIS 90442, at *16.

²⁰¹ Id.

²⁰² Id.

²⁰³ Id. at *16-17.

²⁰⁴ The dispute began with Tesoro High Plains Pipeline Co., LLC operating the pipeline at issue. That company briefly changed its name to Andeavor Logistics, L.P., but was then acquired by Marathon. For simplicity, we refer to them as Marathon.

²⁰⁵ Tesoro High Plains Pipeline Co., LLC v. United States, No. 1:21-cv-90, 2023 U.S. Dist. LEXIS 200992, at *4 (D.N.D. Nov. 8, 2023); see Chase v. Andeavor Logistics, L.P., 12 F.4th 864, 867 (8th Cir. 2021) (“In February 2017, the Tribe and Andeavor agreed to renew the right-of-way and settle past trespass damages for Tribal land for roughly $2 million per acre.”).

ment.²⁰⁶ In 2023, the U.S. District Court for the District of North Dakota held briefing on whether the allottees could assert trespass claims themselves.²⁰⁷ On August 8, 2023, the district court concluded that the allottees could not assert federal common law trespass claims because they did not allege that they hold aboriginal title to the allotments.²⁰⁸ On September 6, 2023, the allottees appealed that decision to the U.S. Court of Appeals for the Eighth Circuit where the matter is pending.²⁰⁹

Separately, in 2020, BIA issued a Notice of Trespass Determination that the pipeline had trespassed on 50 acres of individually-owned trust lands for seven years.²¹⁰ Although BIA initially ordered damages totaling $187.2 million, it later reduced that number to just $4 million and ordered the pipeline to cease operations.²¹¹ After the change in presidential administration in 2021, the Acting Secretary of the Department of the Interior vacated the prior administrative decisions and directed the Regional Director to provide an opportunity for interested parties to be heard and issue a new decision to address the continued occupation of the expired right-of-way, as appropriate.²¹² In April 2021, Marathon sued to invalidate the vacatur.²¹³ On August 20, 2021, individual American Indian landowners moved to intervene in the lawsuit.²¹⁴ Six months later, the United States counterclaimed against Marathon for ejectment, declaratory and injunctive relief, an accounting, and damages.²¹⁵ In August 2023, the district court denied the individual American Indian landowners’ request to join the lawsuit on grounds that the United States adequately represented their interests and that the addition of several other parties would delay the proceedings.²¹⁶ And on November 8, 2023, the district court severed and stayed the United States’ counterclaims on grounds that they presented separate issues that “ought to be decided at a later juncture,” but refused to dismiss the counterclaims outright.²¹⁷ Marathon’s claims remain pending.

A further example involves legal action by the Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation against Enbridge Energy Company in connection with the expiration of the right-of-way for the Line 5 crude oil and natural gas pipeline.²¹⁸ The U.S. District Court for the Western District of Wisconsin found conditions at a segment of the Bad River where Line 5 crossed “create a real and unreasonable risk” of pipeline rupture and ordered implementation of a shutdown and purge plan to address the potential nuisance.²¹⁹ On the Band’s trespass claim, the court awarded $5,151,668 “in profits-based damages for Enbridge’s past trespass” and set forth a formula to calculate future damages for continued unauthorized operation of the pipeline as it is shut down.²²⁰ The court reasoned that “the current threat of rupture is still not so imminent that an immediate shutdown of the pipeline is necessary to prevent the nuisance.”²²¹ But the court enjoined Enbridge to “remove its pipeline within three years from any parcel within the Band’s tribal territory on which it lacks a valid right-of-way and to provide reasonable remediation at those sites.”²²² Both parties appealed to the Seventh Circuit, where the case is pending.²²³

In April 2024, the United States filed an amicus brief expressing the opinion that Line 5 is trespassing on the Band’s lands and asserting that the amount of the penalty awarded to the Band should be increased.²²⁴ However, the United States also argued that the Band’s public nuisance claim should be dismissed and cautioned against ordering the shutdown of the pipeline in light of separate, international treaties governing the United States’ trade and diplomatic relations with Canada.²²⁵ The Band responded that the United States’ treaty with Canada did not

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²⁰⁶ Chase, 12 F.4th at 866-67.

²⁰⁷ Chase v. Andeavor Logistics, L.P., 686 F. Supp. 3d 854, 860-61 (D.N.D. 2023).

²⁰⁸ Id. at 861-62, 866.

²⁰⁹ Chase v. Andeavor Logistics, L.P., No. 23-3019 (8th Cir. 2024) (pending).

²¹⁰ Chase, 12 F.4th at 875.

²¹¹ Id.

²¹² Id. at 875-76.

²¹³ Id. at 876.

²¹⁴ Order Denying Motion to Intervene, Tesoro High Plains Pipeline Co., LLC v. United States, No. 1:21-cv-90, at 3 (D.N.D. Aug. 8, 2023).

²¹⁵ Id. at 4.

²¹⁶ Id. at 4-12.

²¹⁷ Tesoro High Plains Pipeline Co., LLC v. United States, No. 1:21-cv-90, 2023 U.S. Dist. LEXIS 200992, at *6-9 (D.N.D. Nov. 8, 2023).

²¹⁸ Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation v. Enbridge Energy Co., No. 19-cv-602-wmc, 2023 U.S. Dist. LEXIS 105397, at *3 (W.D. Wis. June 16, 2023).

²¹⁹ Id. at *6.

²²⁰ Id. at *6-7.

²²¹ Id. at *6.

²²² Id. at *7.

²²³ Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation v. Enbridge Energy Co., Inc., Nos. 23-2309, 23-2467 (7th Cir. 2024) (pending). Separately, the Michigan Attorney General filed a legal challenge to the Line 5 pipeline, garnering support from 63 tribal nations in an amicus brief filed at the Sixth Circuit. Alyssa Aquino, Tribes Back Mich.’s Challenge to Pipeline On ‘Sacred’ Waters, LAW360 (Sept. 26, 2023). The amicus brief cited the cultural, economic, and spiritual significance of Straits of Mackinac on the Great Lakes and argued that an oil spill from Line 5 would threaten treaty rights to hunting, fishing, and gathering in the area. Id. Furthermore, several tribal nations have requested the Michigan Court of Appeals overturn the Michigan Public Service Commission’s permit approval that authorizes the Line 5 pipeline tunnel project to replace portions of the pipeline beneath the Straits of Mackinac. Brief of Appellants Bay Mills Indian Community, Little Traverse Bay Bands of Odawa Indians, Grand Traverse Band of Ottawa and Chippewa Indians, and Nottawaseppi Huron Band of the Potawatomi, In re Application of Enbridge Energy to Replace & Relocate Line 5, Court of Appeals Nos. 369156, 369159, 369162 (consolidated) (Mich. Ct. App. Apr. 11, 2024). These disputes demonstrate how a single large infrastructure project can implicate the treaty rights of numerous tribes across multiple state jurisdictions.

²²⁴ Brief of the United States as Amicus Curiae Supporting Partial Reversal, Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation v. Enbridge Energy Co., Inc., No. 23-2309, at 10-22, 40-47 (7th Cir. Apr. 10, 2024).

²²⁵ Id. at 22-40, 47-59.

clearly diminish tribal sovereignty and that Enbridge should remove Line 5 within six months “as it should have done more than a decade ago.”²²⁶ Enbridge, on the other hand, disputed the federal government’s contention that it was a “conscious trespasser” and that the amount of profits subject to disgorgement should be increased.²²⁷

While the Marathon and Line 5 pipeline examples do not directly involve transportation infrastructure, they nonetheless offer important insights into the potential impacts of tribal treaties on transportation facilities. Both highlight the complex role played by the United States in resolving (or not resolving) disputes between private right-of-way holders and affected tribal governments. The Marathon pipeline example is particularly instructive regarding BIA’s role and the impact of national politics on damages and other remedies.

The BNSF rail line case demonstrates how operation of transportation infrastructure can pose similar risks when facilities are used to transport fossil fuels and other hazardous materials that threaten public health and the environment. It is not hard to imagine other analogous situations in the transportation context with unauthorized rights-of-way supporting aging infrastructure posing imminent risks of landslide or accident that could result in danger to public health and safety. Indeed, the Lac du Flambeau roadway and the BNSF rail line disputes show how tribes, the United States, and courts treat transportation infrastructure trespassing on tribal land and how legally enforceable restrictions, or compensation schemes, can be set in connection with how these facilities are operated.

Moreover, these examples demonstrate the variety of tactics and stakeholders implicated in disputes over expired or otherwise invalid rights-of-way for transportation facilities in Indian Country. Treaties, court orders, and project-specific agreements negotiated with tribes all set legal parameters for how facilities are operated and what compensation or other accommodations are owed to tribes whose lands are being encroached upon.

b. Natural Resources and Habitats

Operation of transportation facilities can also conflict with tribal treaty rights by impacting natural resources and habitats. Indeed, some tribes have enforced their treaty rights to influence ongoing operation of transportation infrastructure. For example, in a recent subproceeding of the long-running United States v. Washington litigation (referenced earlier in Section II.G), a coalition of tribes in the Pacific Northwest recently enforced their treaty fishing rights to require the State of Washington to replace culverts interfering with salmon migration.²²⁸ Among other things, the relevant treaties granted tribal access to fish “forever,” including through off-reservation fishing, in exchange for tribal cession of large areas of territory.²²⁹ The culverts obstructed the path of salmon returning from the Pacific Ocean to spawn, prevented juvenile salmon from going out to sea, and reduced the mobility of very young salmon to search for food and avoid predators.²³⁰ The court found that each of these impacts interfered with the coalition’s treaty rights to fish.²³¹

The remedy developed by the U.S. District Court for the Western District of Washington (and later upheld by the U.S. Court of Appeals for the Ninth Circuit) distinguished between low-priority and high-priority culverts based on the amount of upstream habitat that would become accessible, setting a 17-year schedule for the highest priority culverts and a more lenient schedule for the lower priority ones.²³² It made no difference that the United States (which was suing the State of Washington on behalf of the tribal coalition) had played a role in constructing the culverts. In the Ninth Circuit’s view, federal involvement in construction did not constitute a waiver of any tribal treaty right.²³³ “Because the treaty rights belong to the Tribes rather than the United States,” it reasoned, “it [was] not the prerogative of the United States to waive them.”²³⁴ The United States Supreme Court, as an equally divided Court, affirmed the Ninth Circuit’s decision per curiam, with Justice Kennedy recusing himself due to prior involvement in the case.²³⁵

It is worth keeping in mind that the scope and viability of tribal hunting and fishing rights may never be truly settled until the U.S. Supreme Court has decided them. For instance, on March 28, 2024, the U.S. District Court for the District of Wyoming entered an order in favor of the Crow Tribe upholding the Tribe’s right to hunt in Bighorn National Forest.²³⁶ In doing so, the district court cited the same principles underlying McGirt: “while tribal nations are beholden to the federal government’s authority, treaties are the supreme law of the land and require expression congressional abrogation for the rights therein to be extinguished.”²³⁷

At the urging of the Crow Tribe, the U.S. Court of Appeals for the Tenth Circuit directed the district court to revisit its 1994 decision that the Crow Tribe’s treaty rights under the Second Treaty of Fort Laramie²³⁸ had been extinguished by Wyoming’s addition as a state in 1890—a decision that the Tenth Circuit

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²²⁶ Supplemental Brief of Bad River Band in Response to Amicus Curiae Brief of the United States, Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation v. Enbridge Energy Co., Inc., No. 23-2309, at 3, 21-23 (7th Cir. Apr. 29, 2024).

²²⁷ Enbridge’s Supplemental Brief in Response to United States Amicus Brief, Bad River Band of the Lake Superior Tribe of Chippewa Indians of the Bad River Reservation v. Enbridge Energy Co., Inc., No. 23-2309, at 1 (7th Cir. Apr. 29, 2024).

²²⁸ United States v. Washington, 853 F.3d 946 (9th Cir. 2017), aff’d by Washington v. United States, 138 S. Ct. 1832 (2018). The Ninth Circuit initially issued its opinion June 27, 2016. 827 F.3d 836. Subsequently, the Ninth Circuit modified and reprinted the opinion on March 2, 2017. 853 F.3d 946.

²²⁹ Id. at 954, 964-65.

²³⁰ Id. at 954.

²³¹ Id.

²³² Id. at 974-75.

²³³ Id. at 966-68.

²³⁴ Id. at 967.

²³⁵ Washington v. United States, 138 S. Ct. 1832, 1833 (2018).

²³⁶ Crow Tribe of Indians v. Repsis, No. 1:92-CV-01002-ABJ, 2024 U.S. Dist. LEXIS 66700, at *21-31 (D. Wyo. Mar. 28, 2024).

²³⁷ Id. at *2-3.

²³⁸ Art. IV, 15 Stat. 650 (May 7, 1868).

had affirmed in 1995.²³⁹ Fifteen years later, the Supreme Court determined in a separate case in 2019 that a citizen of the Crow Tribe retained a treaty right to hunt elk in Bighorn National Forest.²⁴⁰ That ruling had broader implications beyond the individual tribal citizen; accordingly, the Tenth Circuit directed the district court to revisit the earlier decision limiting the Crow Tribe’s treaty rights to hunting within the Tribe’s current reservation.²⁴¹ The district court’s ruling in favor of the Crow Tribe significantly expanded the scope of the treaty rights recognized in the federal courts, potentially giving the Crow Tribe greater influence in exercising those rights in the future.²⁴² In apparent recognition of this, the district court urged Wyoming and the Crow Tribe to “strike a balance between treaty-based usufructuary rights and state sovereignty over natural resources, for . . . the two are necessarily compatible”²⁴³—advice that applies equally to potential disputes directly involving transportation facilities.

In contrast, the Unkechaug Indian Nation was unsuccessful in seeking to have treaty rights for eel fishing recognized in litigation in the U.S. District Court for the Eastern District of New York.²⁴⁴ The district court rejected the Nation’s challenge to a state agency’s regulation of eel harvests, reasoning that the Nation’s reliance on a 1676 order by English Colonial Governor granting fishing rights did not amount to tribal treaty rights as it predated the formation of the United States.²⁴⁵ The Nation has appealed the decision to the U.S. Court of Appeals for the Second Circuit, maintaining that the colonial order is a treaty and that ambiguities should be interpreted in the Nation’s favor.²⁴⁶

Regardless of the ultimate outcome of the case, the Unkechaug Indian Nation example highlights the complexity of parsing the validity and scope of tribal treaty rights to hunt and fish and underscores the importance of evaluating the history and documentation behind the rights being asserted. As shown by the Crow Tribe example, rights that initially appear limited can later be found to have great force. Although neither of these cases directly involve transportation facilities, rights related to natural resources and protection of habitats certainly can impact operation of infrastructure, as demonstrated by the culverts case.

These examples illustrate the power of harnessing specific natural resource treaty rights to secure infrastructure modifications necessary to mitigate or avoid environmental impacts. Even if the federal government originally played a role in funding or constructing the infrastructure, tribes may nonetheless assert their treaty rights. In the context of transportation facilities, it is plausible that treaty rights could be leveraged to require wildlife crossings or other infrastructure improvements designed to secure protections for sensitive species. Given the economic benefits of wildlife crossings in preventing vehicle collisions, states may be inclined to partner with tribes to improve habitat connectivity in accordance with treaty rights.²⁴⁷

In addition, tribes may seek recourse after a transportation facility damages or destroys natural and cultural resources of significance. Citizens of the Confederated Tribes and Bands of the Yakama Nation and the Confederated Tribes of Grand Ronde brought a joint claim under the Religious Freedom Restoration Act (RFRA) against the U.S. Department of Transportation (USDOT) after a project to add a center turning lane to a portion of U.S. Highway 26 in Oregon resulted in the destruction of tribal sacred sites in 2008.²⁴⁸ On October 6, 2022, the plaintiffs petitioned the U.S. Supreme Court to decide the matter.²⁴⁹ On October 5, 2023, the United States and the plaintiffs agreed to a settlement that would restore the sacred site through planting of trees, reconstruction of a stone altar, and installation of interpretive signage (with language drafted in consultation with tribal governments) to explain the area’s cultural importance.²⁵⁰

Thus, treaty rights can also be enforced to protect sensitive habitats and other features of cultural significance. The success of the tribal citizens in Oregon could inspire others to bring challenges (based on religious rights or otherwise) against other existing transportation infrastructure that previously brought

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²³⁹ Crow Tribe of Indians v. Repsis, 74 F.4th 1208, 1210-11, 1219-23 (10th Cir. 2023).

²⁴⁰ See Herrera v. Wyoming, 139 S. Ct. 1686, 1700-03 (2019) (holding that Crow tribal citizen had a treaty right to hunt elk in Bighorn National Forest in case where tribal citizen faced charges for off-season hunting).

²⁴¹ See Crow Tribe, 74 F.4th at 1219-23 (holding that the district court abused its discretion in holding that it lacked power to review Tribe’s Federal Rule of Civil Procedure 60(b) motion to grant relief from a prior judgment).

²⁴² See Crow Tribe, 2024 U.S. Dist. LEXIS 66700, at *21-22 (citing Herrera v. Wyoming, 139 S. Ct. at 1697-98, 1700).

²⁴³ Id. at *30.

²⁴⁴ See Unkechaug Indian Nation v. N.Y. State Dep’t of Env’t Conservation, 677 F. Supp. 3d 137, 156-60, 165 (E.D.N.Y. 2023) (rejecting Unkechaug’s arguments and granting the State’s motion for summary judgment).

²⁴⁵ Id. at 156. Furthermore, the district court reasoned that the colonial order only granted fishing rights subject to State law. Id. at 159.

²⁴⁶ See, e.g., Opening Brief for Plaintiffs-Appellants, Unkechaug Indian Nation v. N.Y. State Dep’t of Env’t Conservation, No. 23-1013, at 4-7 (2d Cir. Oct. 25, 2023).

²⁴⁷ See, e.g., ECONORTHWEST, FUNDING FOR WILDLIFE CROSSING INFRASTRUCTURE: AN EVALUATION OF REVENUE AND FUNDING MECHANISMS 7-8 (Apr. 2023) (detailing private, public, and environmental costs of vehicle collisions with wildlife and the benefits of constructing wildlife crossings). The U.S. Department of Transportation (USDOT) has also offered grants for wildlife crossings funded by the Infrastructure Investment and Jobs Act of 2021, demonstrating growing interest and investment in these types of projects. USDOT, Federal Highway Administration, Wildlife Crossings Program, https://highways.dot.gov/federal-lands/programs/wildlifecrossings.

²⁴⁸ Petition for Writ of Certiorari, Slockish v. U.S. Dep’t of Transp., No. 21-35220 (Oct. 6, 2022), https://www.supremecourt.gov/DocketPDF/22/22-321/242361/20221003194807676_Slockish%20v.%20US%20Dept%20of%20Transportation%20-%20Cert%20Petition.pdf.

²⁴⁹ Id.

²⁵⁰ Joint Stipulation to Dismiss, Slockish v. U.S. Dep’t of Transp., No. 22-321 (Oct. 5, 2023), https://www.supremecourt.gov/DocketPDF/22/22-321/284224/20231005102617383_Joint%20Stipulation%20to%20Dismiss%20as%20filed.pdf.

about the destruction of sacred sites in hopes of securing a similar restoration-focused settlement.²⁵¹

c. Tribal Regulatory Authority

Under the framework of Montana v. United States (discussed earlier in Section IV.B.3), tribes possess regulatory authority in Indian Country over non–American Indian activities on non–American Indian fee lands only where there is a consensual relationship, such as a commercial transaction, contract, or lease, or the non–American Indian activities have some direct effect on the political integrity, economic security, or health or welfare of the tribe.²⁵² These two exceptions to the general rule limiting tribal jurisdiction are by their terms quite broad, but courts are supposed to interpret them narrowly.²⁵³ It is important to consider how these exceptions are used in connection with state transportation facilities because public highways, for instance, are not considered tribal land such that the Montana test applies.²⁵⁴

The Supreme Court has in some cases interpreted the Montana exceptions narrowly, creating legal uncertainty about the extent of tribal authority. For instance, in 1989, the Court held that despite the Yakima Nation’s treaty providing that land retained by the Yakima Nation “shall be set apart . . . for the exclusive use and benefit” of the Yakima Nation, that treaty right was extinguished during Allotment and the Yakima Nation’s zoning powers were therefore limited.²⁵⁵ The Supreme Court passed down a fractured opinion with an operative holding that the Yakima Nation could exercise its zoning authority in what was referred to as the “closed area” of the reservation, a predominantly forested area with a small percentage of privately-owned land and BIA-maintained roads restricted to citizens of the tribe and its permittees.²⁵⁶ The Yakima Nation could not, however, use its zoning authority in the “open area” of the reservation, which was half land owned in fee simple, not restricted to tribal citizens, and covered by developed residential and commercial areas along with rangeland and agricultural land.²⁵⁷

Similarly, the U.S. Court of Appeals for the Ninth Circuit has held that the Fort Belknap Indian Community was not able to impose its affirmative action employment ordinance on repair work done on a state-owned highway passing through its reservation.²⁵⁸ The Fort Belknap Tribal Employment Rights Ordinance (TERO) included hiring quotas, special seniority rules, use of the TERO office as a source of employment, mandatory advertising, and business permits with associated fees.²⁵⁹ However, the Montana Department of Transportation used its own employees exclusively for a portion of the project to repair the state highway, despite using a private contractor that complied with the TERO for the first half of the project.²⁶⁰ The Ninth Circuit rejected the Community’s contentions that the Montana exceptions applied to the enforcement of the TERO. First, the grant of a right-of-way for the highway to cross the reservation did not amount to a consensual relationship with the Community and neither did Montana’s compliance with the TERO for the first half of the project.²⁶¹ Second, even though the welfare of the Community was allegedly “harmed by the very high levels of unemployment on the reservation,” enforcement of the TERO was not necessary to the Community’s sovereignty, especially given that Montana was responsible for maintaining the highway and right-of-way at its own expense.²⁶²

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²⁵¹ It is notable, however, that the Ninth Circuit recently affirmed denial of injunctive relief based on the Free Exercise Clause of the First Amendment of the U.S. Constitution, RFRA, and treaty rights that would have prevented the United States from transferring federal land identified by the Western Apache as a sacred site to a mining company for mining operations. Apache Stronghold v. United States, No. 21-15295, 2024 U.S. App. LEXIS 11655, at *12-14 (9th Cir. May 14, 2024) (en banc); see also Apache Stronghold v. United States, No. 21-15295, 2024 U.S. App. LEXIS 11654, at *7-8 (9th Cir. May 14, 2024) (en banc) (denying petition for rehearing en banc and amending the opinion rejecting First Amendment, RFRA, and treaty arguments). Regarding the treaty rights arguments specifically, Apache Stronghold, a nonprofit representing the interests of citizens of the San Carlos Apache Tribe, argued that the land transfer would violate the 1852 Treaty of Santa Fe. Apache Stronghold, 2024 U.S. App. LEXIS 11655, at *14, 22-23. That treaty allegedly imposed fiduciary trust obligations on the United States that would be violated if the site, called Oak Flat and used for traditional religious practices, were destroyed. Id. at *15-16, 23. However, the Ninth Circuit determined that, because Congress approved the land exchange through federal statute as part of the National Defense Authorization Act for 2015, that law had abrogated the alleged trust obligation in the treaty. Id. at *63-65. This suggests limitations to using Native American religious rights arguments at least where they are leveraged to stop development. Apache Stronghold has signaled that it intends to petition the U.S. Supreme Court to hear the case, so it is possible that the Court may opine on the viability of using Native American religious rights and related treaty rights as legal tools for stopping or modifying projects. See Clark Mindock, Indigenous Group to Take Fight Against Arizona Copper Mine to Supreme Court, REUTERS (May 14, 2024), https://www.reuters.com/sustainability/landuse-biodiversity/indigenous-group-take-fight-against-arizona-coppermine-supreme-court-2024-05-14/.

²⁵² Montana v. United States, 450 U.S. 544, 565-66 (1981).

²⁵³ See Strate v. A-1 Contractors, 520 U.S. 438, 457-59 (1997) (interpreting the Montana exceptions narrowly to keep the exceptions from “shrink[ing] the rule”).

²⁵⁴ See id. at 442 (“[T]ribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question,” even where that highway runs through an American Indian reservation.); see also South Dakota v. Frazier, No. 4:20-CV-03018-RAL, 2020 U.S. Dist. LEXIS 197503, at *10-11, n.3 (D.S.D. Oct. 23, 2020) (holding that South Dakota Department of Transportation had regulatory authority over U.S. Highway 212 to set speed limit rather than Cheyenne River Sioux Tribe because the Tribe did not reserve any right to regulate the land subject to the right-of-way when it consented to easements for construction of the highway and any speeding violation would be a criminal offense rather than an exercise of civil regulatory authority).

²⁵⁵ See Brendale v. Confederated Tribes & Bands of Yakima Indian Nation, 492 U.S. 408, 422 (1989).

²⁵⁶ Id. at 438-44 (Stevens, J., concurring).

²⁵⁷ Id. at 444-47 (Stevens, J., concurring).

²⁵⁸ Montana DOT v. King, 191 F.3d 1108, 1110 (9th Cir. 1999).

²⁵⁹ Id. at 1111.

²⁶⁰ Id.

²⁶¹ Id. at 1113-14.

²⁶² Id. at 1114.

In limited circumstances, however, tribes can use environmental and land use regulations to influence non–American Indian activities in Indian Country—authority that may affect state transportation facilities shown to pose a serious threat to tribal health and safety.²⁶³ Relatedly, non–American Indian activities on tribally controlled land within Indian Country are presumptively subject to more tribal regulation.²⁶⁴ Therefore, activities ancillary to those occurring on non–American Indian land could potentially be subject to more tribal restrictions.

Enhanced tribal authority on tribal land can motivate tribes to assert treaty claims over land that they see as rightfully theirs. For example, in Canadian St. Regis Band of Mohawk Indians v. New York (noted earlier in Section II.I.5), three Mohawk tribes asserted ancestral land claims based on treaty rights.²⁶⁵ Notably, the Northern District of New York applied McGirt in its analysis of the treaties and concluded that the State of New York’s counterclaims for disestablishment and diminishment of the reservation should be dismissed.²⁶⁶ Among other things, the court made clear that McGirt’s commandments apply “with equal force to both disestablishment and diminishment” of reservations,²⁶⁷ reinforcing the strength of Congressionally ratified treaties and confirming that only Congress can diminish treaty rights or treaty lands.²⁶⁸

In addition, tribes in Minnesota persuaded the Minnesota Department of Transportation to post highway signs to mark the boundaries of a treaty signed in 1854 by the United States and three bands of Ojibwe Tribes: the Grand Portage Band of Lake Superior Chippewa, the Bois Forte Band of Chippewa, and the Fond du Lac Band of Lake Superior Chippewa.²⁶⁹ The signs are intended to raise awareness of the treaties and more clearly mark the extent of tribal territory and the authority that comes with it.

Minnesota tribes have also advocated for state legislation to return land to tribal control—a good example of the ways in which land restoration efforts rooted in treaties can manifest through legislative efforts as well as litigation. Advocacy groups have argued that treaties affecting tribes in the State, federal law, and the Supremacy Clause of the U.S. Constitution all support returning land to tribes and that doing so will support better stewardship of the environment.²⁷⁰ For instance, SF 3480 and HF 4304 are Minnesota Senate and House bills seeking to return the White Earth Forest State Forest from State ownership to the White Earth Nation.²⁷¹ The White Earth Nation has sought to address controversy about whether tribal control would result in others being shut out by reassuring private landowners who access their property through the White Earth Forest that they would not face any additional restrictions as a result in the change in ownership.²⁷² Rather, the change in ownership is intended to redress past wrongs when land was taken away by force or deception and to facilitate a tribal role in stewardship of the land and maintenance of roads and facilities.²⁷³ Nevertheless, tensions remain as local officials and landowners continue to voice concerns.²⁷⁴ It remains to be seen how the legislative process will resolve these simmering disputes in this legislative session and beyond.

In Texas, the Ysleta Del Sur Pueblo has disputed with the City of El Paso over the Pueblo’s claimed aboriginal rights to the land underlying some local school district facilities.²⁷⁵ The Pueblo claims it had used the disputed property—totaling about 112 acres—for economic, religious, and traditional cultural pur-

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²⁶³ See, e.g., FMC Corp. v. Shoshone-Bannock Tribes, 942 F.3d 916, 919-20, 935, 939 (9th Cir. 2019) (holding that tribes had regulatory jurisdiction over storage site of 22 million tons of radioactive, carcinogenic, and poisonous phosphorous wastes within the Bannock Fort Hall Reservation in Idaho even though FMC Corporation was a non–American Indian entity and the site was on fee land because the waste sites “pose a constant and deadly threat to the Tribes” and “a real risk of catastrophic consequences should containment fail”); Rincon Mushroom Corp. of Am. v. Mazzetti, No. 3:09-cv-02330-WQH-JLB, 2022 U.S. Dist. LEXIS 67044, at *26-31 (S.D. Cal. Mar. 15, 2022) (holding that Rincon Band of Luiseño Indians could regulate non–American Indian private property that included storage of flammable materials and tanks and vehicles without adequate disposal systems because the property was located near the Tribe’s water supply and its casino and resort and threatened water contamination and explosion or fire); Big Horn Cnty. Elec. Coop. v. Alden Big Man, 526 F. Supp. 3d 756, 772 (D. Mont. 2020) (holding that Montana’s second exception applied such that Crow Tribe had jurisdiction over electricity cooperative because of threat to health and safety of tribal citizens posed by shutting off electricity service in the middle of the frigid Montana winter).

²⁶⁴ See, e.g., Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152 (1980) (upholding Tribes’ right to tax cigarette sales to nontribal purchasers on American Indian lands as “a fundamental attribute of sovereignty”); Window Rock Unified Sch. Dist. v. Reeves, 861 F.3d 894, 899 (9th Cir. 2017) (holding that when nontribal conduct occurs on tribal land, a tribe’s right to exclude generally “imparts regulatory and adjudicative jurisdiction over conduct on that land”).

²⁶⁵ Canadian St. Regis Band of Mohawk Indians v. New York, No. 5:82-CV-0783, 2022 U.S. Dist. LEXIS 44940, at *6 (N.D.N.Y. Mar. 14, 2022).

²⁶⁶ Id. at *29-36, 46.

²⁶⁷ Id. at *35.

²⁶⁸ Id. at *35-36. The State pointed only to the 1824 and 1825 land transactions that serve as the basis for the instant suit. Neither transaction was ratified by statute or treaty. Id.

²⁶⁹ Dan Kraker, For first time, MnDOT puts up signs recognizing treaty boundaries, MPR NEWS (Nov. 7, 2021), https://www.mprnews.org/story/2021/11/07/for-first-time-mndot-puts-up-signs-recognizing-treaty-boundaries.

²⁷⁰ Joyce Hanson, Minn. Tribes Seek Support For Five ‘Land Return’ Bills, LAW360 (Apr. 30, 2024), https://www.law360.com/articles/1830663/minn-tribes-seek-support-for-five-land-return-bills.

²⁷¹ Letter of Support for Legislation Returning Land to Indigenous Nations within Geographic Boundaries of Minnesota (Apr. 24, 2024), https://www.law360.com/articles/1830663/attachments/0.

²⁷² Id.

²⁷³ Id.; Joyce Hanson, Minn. Tribes Seek Support For Five ‘Land Return’ Bills, LAW360 (Apr. 30, 2024), https://www.law360.com/articles/1830663/minn-tribes-seek-support-for-five-land-return-bills.

²⁷⁴ Dan Gunderson, Tensions Build as White Earth Nation Tries to Assert Authority Over State Forest Land Use, MPR NEWS (Apr. 16, 2024), https://www.mprnews.org/story/2024/04/16/tensions-build-as-whiteearth-nation-tries-to-assert-authority-over-state-forest-land-use.

²⁷⁵ Crystal Owens, El Paso Says U.S. Can’t Weigh In On Tribal Land Suit, LAW360 (Mar. 21, 2024), https://www.law360.com/articles/1816002.

poses, but El Paso took possession of the land in 1936.²⁷⁶ The Pueblo had previously filed a complaint in 2017 asserting a state law trespass-to-try-title action based on a 1751 Spanish land grant, but the U.S. Court of Appeals for the Fifth Circuit affirmed dismissal of that complaint without prejudice in 2021.²⁷⁷ The Pueblo renewed its complaint in April 2023, alleging that El Paso is trespassing on lands to which it has aboriginal title and invoking federal statutes forbidding sale of Native lands without approval of the federal government.²⁷⁸ The United States has come to the Pueblo’s aid in the dispute, seeking to intervene in an August 2023 motion to argue on behalf of the Pueblo’s aboriginal title and to corroborate the Pueblo’s view that the United States never authorized non–Native Americans taking the Pueblo’s aboriginal property.²⁷⁹ El Paso disputes the bases for the Pueblo’s complaint as well as the United States’ right to intervene.²⁸⁰ The matter remains pending before the U.S. District Court for the Western District of Texas. The United States’ efforts in allying itself with the Pueblo further demonstrate how tribes may rely in part on friendly government actors to assert their claims of control over land taken away from them long ago.

Similarly, the Navajo Nation has called for the United States to halt transportation of uranium ore across the Navajo reservation. Navajo Nation President Buu Nygren signed a resolution decrying the environmental and health impacts of mining and radiation exposure and asserting that the transport of uranium ore violated Navajo sovereignty.²⁸¹ The Navajo Nation’s Radioactive and Related Substances Equipment, Vehicles, Persons and Materials Transportation Act makes it unlawful to transport uranium within the Navajo Nation, but also provides a loophole exempting transportation via State Route 89 and U.S. Highway 160 from the law.²⁸² Energy Fuels, Inc., the uranium producer that recently started trucking operations from Pinyon Plain Mine in Kaibab National Forest in Arizona to Southern Utah, responded that it is complying with all applicable U.S. Department of Transportation laws and regulations regarding shipment of uranium ore.²⁸³ The call for federal action has so far gone unanswered, but it remains a flashpoint and a reminder of the limitations of tribal regulatory authority over certain parts of tribal land.

Also worth noting is a 2019 U.S. Supreme Court decision holding that Cougar Den, Inc., a fuel importation business owned by the Yakama Nation,²⁸⁴ could benefit from the tribe’s treaty right to travel on public highways with goods for sale, precluding the State of Washington from assessing fuel taxes against the business.²⁸⁵ The Yakama Nation has recently applied this decision to invalidate a fuel tax assessment in the State of Arizona.²⁸⁶ Although case law on this issue continues to develop, these two examples illustrate the potential for “free travel” treaty rights to impact highway facilities—even those well outside Indian Country.

d. Law Enforcement

For many transportation facilities, law enforcement is a critical operational issue. The McGirt decision had the effect of limiting state enforcement authority over American Indians in Indian Country. However, the Supreme Court subsequently held in Castro-Huerta that “as a matter of state sovereignty, a state has jurisdiction over all of its territory, including Indian Country” unless federal law or a treaty clearly curtails the state authority.²⁸⁷ The Supreme Court determined that the United States and the State of Oklahoma have concurrent jurisdiction to prosecute crimes committed by non–American Indians against American Indians in Indian Country.²⁸⁸ Dissenting in Castro-Huerta, Justice Gorsuch cited an amicus brief filed by former U.S. Attorneys, expressing concern that federal prosecutors will defer to states to enforce criminal laws in Indian Country and states will not devote resources if they think the federal government has the issue covered, resulting in a “pass-the-buck dynamic” that impacts public safety.²⁸⁹

Post-McGirt questions of criminal jurisdiction continue to be litigated, with the case of Hooper v. City of Tulsa among the most recent examples. The case concerns Justin Hooper, a citizen of the Choctaw Nation, who received a speeding ticket under a City of Tulsa ordinance for his actions within the Mus-

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²⁷⁶ Id.

²⁷⁷ Ysleta Del Sur Pueblo v. City of El Paso, No. 20-50313, 2021 U.S. App. LEXIS 34856, at *2-4, 9-10 (5th Cir. 2021).

²⁷⁸ Crystal Owens, El Paso Says U.S. Can’t Weigh In On Tribal Land Suit, LAW360 (Mar. 21, 2024), https://www.law360.com/articles/1816002.

²⁷⁹ Id.

²⁸⁰ Defendant’s Supplement to Response to United States’ Motion for Leave to Intervene, Ysleta Del Sur Pueblo v. City of El Paso, No. EP-23-CV-132-DCG, at 2-3 (W.D. Tex. Mar. 19, 2024).

²⁸¹ The Navajo Nation, Press Release, Navajo President Buu Nygren Signs Resolution to Urge President Biden to Prohibit Uranium Hauling on Navajo Lands (Apr. 30, 2024), https://opvp.navajo-nsn.gov/wp-content/uploads/2024/05/President-Nygren-signs-uranium-legislation-for-April-30.pdf.

²⁸² Id.; Arlyssa D. Becenti, Navajo Leaders Urge Biden to Block Transport of Uranium Ore Across Tribal Lands in Arizona, AZCENTRAL.COM (May 8, 2024), https://www.azcentral.com/story/news/local/arizona/2024/05/08/navajo-nation-leaders-ask-biden-to-block-uraniumore-from-pinyon-plain-mine-near-grand-canyon/73616463007/.

²⁸³ Crystal Owens, Navajo Ask Biden to Stop Uranium Movement on Tribal Lands, LAW360 (May 3, 2024), https://www.law360.com/articles/1833355/navajo-ask-biden-to-stop-uranium-movement-on-tribal-lands.

²⁸⁴ In the mid-1990s, the Yakima Nation changed its name to “Yakama” to more closely reflect the proper pronunciation in the tribe’s native language. Yakama Nation History, https://www.yakama.com/about/ (last visited May 24, 2024).

²⁸⁵ Wash. State Dep’t of Licensing v. Cougar Den, Inc., 139 S. Ct. 1000, 1015-16 (2019).

²⁸⁶ Douglas S. John, Big win for Tribal treaty rights in striking down ADOT fuel tax assessment, FRAZER RYAN GOLDBERG & ARNOLD LLP (Mar. 17, 2023), https://www.frgalaw.com/news/big-win-for-tribaltreaty-rights-in-striking-down-adots-fuel-tax-assessment.

²⁸⁷ Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2493-94 (2022).

²⁸⁸ Id. at 2491.

²⁸⁹ Id. at 2523 (Gorsuch, J., dissenting).

cogee Creek Nation Reservation.²⁹⁰ The Tulsa Municipal Criminal Court found Hooper guilty of the moving violation and ordered payment of a $150 fee.²⁹¹ After the McGirt ruling, Hooper sought post-conviction relief based on the fact that the reservation had not been disestablished and that, as an American Indian in Indian Country, Tulsa could not prosecute him.²⁹² The municipal criminal court denied Hooper’s application and the U.S. District Court for the Northern District of Oklahoma dismissed Hooper’s claim for declaratory judgment.²⁹³ Hooper then appealed to the U.S. Court of Appeals for the Tenth Circuit.²⁹⁴

The Tenth Circuit reversed the district court’s decision and vacated the dismissal of Hooper’s declaratory judgment claim.²⁹⁵ The Curtis Act, a law passed by Congress in 1898 as part of the federal policy of allotment, served as the basis for Tulsa’s argument that it retained authority to enforce its ordinances against tribal citizens in Indian Country after McGirt.²⁹⁶ Section 14 of the Curtis Act abolished tribal courts, forced allotment of tribal land, and “provided a path for municipalities in the Indian Territory to incorporate, hold elections, levy taxes, operate school, and pass and enforce ordinances based on Arkansas law.”²⁹⁷ Tulsa was originally incorporated under Arkansas law, but became organized as an Oklahoma Charter City in 1908, after Oklahoma became the 46th State in the Union.²⁹⁸ Hooper did not dispute that Section 14 of the Curtis Act provided Tulsa with jurisdiction over municipal violations by American Indians within Tulsa at the time it was enacted, even though Tulsa was within Indian Country.²⁹⁹ However, Hooper contended, and the Tenth Circuit agreed, that Section 14 no longer applied to Tulsa once it became part of Oklahoma and no longer subject to Arkansas law.³⁰⁰ The Tenth Circuit rejected arguments that (1) the Curtis Act’s references to Arkansas law were implicitly replaced with Oklahoma law and (2) the Oklahoma Constitution’s reservation of preexisting rights and powers of municipalities included Section 14 jurisdiction.³⁰¹ Declaring that it must follow the law, the Tenth Circuit also dismissed concerns of an “unworkable” criminal enforcement system and concluded that Tulsa could not prosecute tribal citizens for violating local laws.³⁰²

On July 26, 2023, Justice Gorsuch granted Tulsa’s request for a stay of the Tenth Circuit’s decision.³⁰³ However, on August 4, 2023, the Supreme Court denied the application for stay of the Tenth Circuit’s mandate.³⁰⁴ Justice Kavanaugh issued a statement, in which Justice Alito joined, that the question of enforcement of municipal laws against American Indians within Tulsa was an important one.³⁰⁵ The statement further noted that the Tenth Circuit had not addressed Tulsa’s jurisdiction under Castro-Huerta and that Tulsa could presumably raise that argument on remand at the district court.³⁰⁶ However, in a December 15, 2023, order, the district court dismissed Hooper’s appeal without prejudice for lack of subject matter jurisdiction on the basis that “Tulsa no longer [had] jurisdiction over municipal violations by its Indian inhabitants.”³⁰⁷ The district court explained that the Tenth Circuit declined to address Tulsa’s Castro-Huerta arguments and that it too would not engage with that line of argument.³⁰⁸ Rather, the district court directed Tulsa to make those jurisdictional arguments in a separate case filed by the Muscogee Creek Nation on November 15, 2023 (MCN v. Tulsa), that seeks to enjoin Tulsa from prosecuting American Indians within reservation boundaries on sovereign immunity grounds.³⁰⁹

Recently, the United States sought to intervene in MCN v. Tulsa as a plaintiff (i.e., alongside the Nation), alleging that McGirt precludes Oklahoma and Tulsa from exercising criminal jurisdiction over American Indians in Indian Country absent congressional authorization—and that Congress had not authorized such jurisdiction in the Nation’s reservation.³¹⁰ Tulsa opposed the United States’ intervention motion on grounds that it should first decide Tulsa’s motion to dismiss or at least stay the case in light of other earlier-filed cases in Oklahoma state court in which criminal defendants have sought dismissal of their cases for Tulsa’s lack of jurisdiction over tribal citizens in Indian Country.³¹¹ MCN v. Tulsa remains ongoing before the U.S. District Court for the Northern District of Oklahoma, as do the Oklahoma state court criminal matters, signaling that these jurisdictional questions remain far from settled.

These complex developments also raise questions about the role of tribal police on and around reservation lands. In 2021, the Supreme Court ruled unanimously that tribal officers can at least investigate and detain non–Native people they suspect

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²⁹⁰ Hooper v. City of Tulsa, 71 F.4th 1270, 1273 (10th Cir. 2023).

²⁹¹ Id.

²⁹² Id. at 1273-74.

²⁹³ Id. at 1274-75.

²⁹⁴ Id. at 1275.

²⁹⁵ Id. at 1273.

²⁹⁶ Id. at 1272.

²⁹⁷ Id. at 1280.

²⁹⁸ Id. at 1279-81.

²⁹⁹ Id. at 1284.

³⁰⁰ Id. at 1285.

³⁰¹ Id. at 1285-87.

³⁰² Id. at 1287-88.

³⁰³ City of Tulsa v. Hooper, No. 23A73, 2023 U.S. LEXIS 2859, at *1 (S. Ct. July 26, 2023). The stay was subsequently extended from July 31, 2023, to August 4, 2023. City of Tulsa v. Hooper, No. 23A73, 2023 U.S. LEXIS 2865, at *1 (S. Ct. Aug. 2, 2023).

³⁰⁴ City of Tulsa v. Hooper, 143 S. Ct. 2556 (2023).

³⁰⁵ Id.

³⁰⁶ Id. at 2557.

³⁰⁷ Order of Dismissal Without Prejudice on the Mandate, Hooper v. City of Tulsa, No. 21-CV-00165-WPJ-JFJ, at 2 (N.D. Okla. Dec. 15, 2023).

³⁰⁸ Id. at 2, n.2.

³⁰⁹ Id.; see also Complaint, Muscogee (Creek) Nation v. City of Tulsa, No. 23-cv-00490-SH (N.D. Okla. Nov. 15, 2023).

³¹⁰ United States’ Motion to Intervene and Opening Brief in Support, Muscogee (Creek) Nation v. City of Tulsa, No. 4:23-cv-00490-JDR-SH, at 1 (N.D. Okla. May 13, 2024).

³¹¹ Defendants’ Response to United States’ Motion to Intervene, Muscogee (Creek) Nation v. City of Tulsa, No. 4:23-cv-00490-JDR-SH, at 2-9 (N.D. Okla. May 20, 2024).

committed a crime on reservation lands.³¹² More recently, the Violence Against Women Act Reauthorization Act of 2022 established Special Tribal Criminal Jurisdiction (sometimes referred to as STCJ), authorizing tribal criminal enforcement in the context of certain crimes committed by non–American Indians.³¹³

The jurisdictional maze of tribal, federal, and state law enforcement activities in Indian Country poses confusion and creates tension between sovereigns as different governments try to navigate who can operate on which roadways and enforce against which individuals suspected of criminal activity. For instance, tribal police have detained suspected non–Native criminals only to be informed by a County Sherriff that local law enforcement is too busy to get involved, leaving tribal officers no choice but to drop suspects off at the nearest off-reservation town.³¹⁴

Safe operation of transportation facilities depends in part on reliable enforcement of traffic safety ordinances and other criminal laws. Therefore, it will be important for ongoing consultation between sovereigns to develop a mutual understanding of their respective jurisdictional boundaries. As the Muscogee Creek Nation asserted in its amicus brief in the Hooper case, a tribe can “exercise[] highly effective criminal law enforcement throughout its Reservation—including in traffic matters—in close cooperation with other governments” and resolving these jurisdictional issues in favor of tribal interests “allow[s] that cooperative enforcement to continue to flourish.”³¹⁵ To the extent tribes and state and local governments cannot agree on how to allocate criminal enforcement authority, the courts may need to provide more specific direction on how tribal treaty powers interact with other law enforcement jurisdiction.

2. Development of New Facilities

a. Siting

Constructing new transportation facilities in and around tribal lands covered by treaties can present significant regulatory challenges for state departments of transportation and other agencies. As an initial matter, current BIA right-of-way regulations mandate that a grant of a right-of-way across American Indian lands “will cause no substantial injury to the land or any landowner.”³¹⁶ Tribes may have additional site-specific leverage—legal, regulatory, or political—over transportation facilities proposed to cross their reservation lands, many of which may come out in federal and state environmental impact assessment processes. And building on tribal land may subject construction and future operations to tribal regulatory authority, as discussed earlier in Section IV.C.1.c.

For these reasons, among others, states may be inclined to site new projects to avoid Indian Country. Tribes have leverage to block or reroute projects to which the tribes object—potentially raising a host of “fair access” access issues.

Recent case law on these issues includes a 2020 ruling by the U.S. District Court for the District of Montana granting summary judgment in favor of the Confederated Salish & Kootenai Tribes on claims that a county government lacked authority to issue a permit for construction of a road through the tribal land in the Flathead Reservation.³¹⁷ In 1855, the Tribes entered into the Hell Gate Treaty, ceding most of their aboriginal lands in Montana and Idaho and reserving the 1,245,000-acre Flathead Indian Reservation in western Montana, which included the Big Arm townsite next to where the RV park project was proposed on the proponent’s private property.³¹⁸ Without seeking permission from the United States or the Tribes, the project proponent sought a County permit to continue construction of the road that began on her private property into land held in trust for the Tribes by the United States.³¹⁹ The Tribes erected a gate blocking access to the project proponent’s lot and the BIA issued a notice of trespass to the contractor hired to develop the property.³²⁰ After the Tribes brought suit, the parties reached an agreement to remove the gate and halt road construction while the case was decided.³²¹

Notably, the district court held that, despite language in the Hell Gate Treaty regarding roads running through the reservation and free access to public highways, the treaty did not give the County an unrestricted right to build roads through the reservation.³²² Rather, the district court interpreted the treaty in the Tribes’ favor, putting emphasis on language that the reservation was to be set apart “for the exclusive use and benefit” of the Tribes.³²³ The district court concluded that the provision about roads merely recognized the public’s right of navigation and did not amount to permission to build new roads or nullify federal procedures for rights-of-way through Indian Country.³²⁴ Therefore, the district court upheld the Tribes’ right to exclude the

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³¹² United States v. Cooley, 141 S. Ct. 1638, 1641 (2021).

³¹³ 25 U.S.C. § 1304.

³¹⁴ Savannah Maher, Supreme Court Rules Tribal Police Can Detain Non-Natives, But Problems Remain, NPR (June 9, 2021), https://www.npr.org/2021/06/09/1004328972/supreme-court-rules-tribal-police-can-detain-non-natives-but-problems-remain.

³¹⁵ Hooper, 71 F.4th at 1287.

³¹⁶ 25 C.F.R. § 169.107.

³¹⁷ Confederated Salish & Kootenai Tribes v. Lake Cty. Bd. of Comm’rs, 454 F. Supp. 3d 957, 961, 965-67 (D. Mont. 2020).

³¹⁸ Id. at 961, 965-66. Much like the analysis conducted by the Supreme Court in McGirt, the district court here concluded that allotment did not disestablish the Flathead Indian Reservation or otherwise divest the Tribes or the United States of jurisdiction over the proposed roadway. Id. at 967-68.

³¹⁹ Id. at 965-66.

³²⁰ Id. at 966.

³²¹ Id.

³²² Id. at 970-71. The relevant provision of the Hell Gate Treaty reads: “[I]f necessary for the public convenience[,] roads may be run through the said reservation; and, on the other hand, the right-of-way with free access from the same to the nearest public highway is secured to them, as also the right in common with citizens of the United States to travel upon all public highways.” Id. at 971 (quoting Hell Gate Treaty of 1855, art. III, July 16, 1855, 12 Stat. 975).

³²³ Id. at 971 (quoting Hell Gate Treaty of 1855, art. II, July 16, 1855, 12 Stat. 975).

³²⁴ Id. at 971.

road development without proper process and approval by the Tribes and the United States.³²⁵

This example illustrates the authority tribes wield in blocking or diverting the siting of development on tribal land when treaties secure exclusive tribal property rights. Developers should approach development contingent on construction of new transportation facilities in Indian Country with caution and should make sure they reach out to tribal stakeholders early and often to avoid affronting tribal sovereignty and potentially becoming the subject of judicial scorn.³²⁶

However, tribal power to restrict development of transportation facilities may be a double-edged sword for some tribes as it may make it more challenging for tribes to attract projects that would be beneficial for providing services and access for tribal citizens. To navigate these issues, tribes and states may opt to enter into cooperative agreements to clearly establish regulatory terms and reach mutually agreeable arrangements for siting new projects. One ongoing example to watch is in California where tribes urged the California Department of Transportation to realign its planned project to expand U.S. Highway 395 from a two-lane road to a four-lane expressway to avoid Native American gravesites discovered as construction got underway.³²⁷

b. Permitting and Environmental Review

Furthermore, the updated NEPA regulations require agencies to identify which of the project alternatives considered in the evaluation of project is the “environmentally preferable alternative” based on several factors, including how well the alternative addresses “disproportionate or adverse effects on communities with environmental justice concerns” and how well it protects, preserves, or enhances “cultural, Tribal, and natural resources, including rights of Tribal nations that have been reserved through treaties, statutes, or Executive Orders.”³³² As shown by the following examples, these regulatory changes can reasonably be viewed as a formal acknowledgment of the role that tribal treaty rights, cultural resources, sacred sites, and other tribal concerns have played in challenges to proposed infrastructure projects, as well as an endorsement of these considerations in environmental review moving forward.

One of the best-known examples of recent years concerned the Dakota Access Pipeline. The Standing Rock Sioux Tribe invoked NEPA, NHPA, and the RFRA to challenge a portion of the pipeline near the Tribe’s South Dakota reservation.³³³ The legal claims brought by the Tribe were infused with tribal treaty rights arguments that asserted the risks of the pipeline leaking oil threatened the sacred body of water and violated rights to water, hunting, and fishing in the area.³³⁴ The U.S. District Court for the District of Columbia rejected most of the Tribe’s arguments, but ruled that the U.S. Army Corps of Engineers (the Corps) failed to properly evaluate the impacts of the pipeline on treaty rights should a potential spill occur, noting that the Tribe retained hunting and fishing rights in nearby waters.³³⁵ The district court remanded to the Corps to address the deficiencies in its NEPA analysis.³³⁶ In the interim, the district court concluded that the easement should be vacated and the pipeline emptied.³³⁷

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³²⁵ Id. at 974.

³²⁶ The language invoked by Judge Christensen made clear that the Court did not take kindly to the lack of any effort to coordinate with the Tribes in connection with the road construction. See, e.g., id. at 966 (explaining that the development “did not, for some inexplicable reason, apply to or otherwise attempt communication with the Tribes”).

³²⁷ Louis Sahagun, Indigenous tribes warned of a buried kingdom in Owens Valley. Now, Caltrans crews are unearthing bones, L.A. TIMES (May 22, 2023), https://www.latimes.com/california/story/2023-05-22/caltrans-indigenous-burial-site.

³²⁸ See, e.g., 40 C.F.R. § 1501.2(b)(4)(ii) (directing federal agencies to consult early with appropriate tribal governments when their involvement is reasonably foreseeable); Proposed 40 C.F.R. § 1501.5(f) (2024) (“Agencies shall involve . . . Tribal . . . governments . . . to the extent practicable in preparing environmental assessments.”); Proposed 40 C.F.R. § 1501.9(c) (2024) (requiring lead federal agency to invite participation of likely affected tribal governments); Proposed 40 C.F.R. § 1502.5(b) (2024) (directing federal agencies to work with tribal governments prior to receipt of a project application requiring an environmental impact statement); 54 U.S.C. § 306108 (requiring evaluation of impacts to “historic property”); 36 C.F.R. § 800.2(c)(2) (interpreting Section 106 of the NHPA to require consultation with tribes for projects on tribal lands or for projects that will impact historic properties of significance to American Indian tribes). The proposed NEPA regulations referenced above existed prior to the latest regulatory update but were recodified with slightly different subsections.

³²⁹ On May 1, 2024, the Council on Environmental Quality issued a Final Rule promulgating extensive revisions to NEPA’s implementing regulations, including a variety of changes impacting how federal agencies consider tribal treaties and other tribal interests in the context of NEPA review. 89 Fed. Reg. 35,422, 35,422 (May 1, 2024).

³³⁰ 40 C.F.R. § 1501.3(d)(1), (d)(2)(ii) (2024).

³³¹ 40 C.F.R. § 1501.3(d)(2)(viii) (2024).

³³² 40 C.F.R. § 1502.14(f) (2024).

³³³ Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 255 F. Supp. 3d 101, 111-12 (D.D.C. 2017).

³³⁴ Id. at 130.

³³⁵ Id. at 132-34.

³³⁶ Id. at 160-61.

³³⁷ Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 471 F. Supp. 3d 71, 75 (D.D.C. 2020). The D.C. Circuit had stayed the district court’s order to the extent it enjoined the pipeline’s use, allowing the Dakota Access Pipeline to continue operating while the merits were decided. Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 985 F.3d 1032, 1039 (D.C. Cir. 2021).

The U.S. Court of Appeals for the D.C. Circuit affirmed the district court in vacating the easement while the Corps prepares an EIS, but reversed as to the determination that the pipeline should be shut down.³³⁸ The project, the D.C. Circuit highlighted inadequacies in the pipeline leak detection system, the operator’s poor safety record, inadequate response to concerns about operating in harsh winter conditions, and lack of analysis of a worst-case scenario oil spill.³³⁹ Although the D.C. Circuit did not explicitly factor tribal treaty rights into its analysis, it did echo the arguments given credence by the district court about the impacts of an oil spill on tribal fishing and hunting rights, and the status of tribes as sovereign nations loomed large in the court’s reasoning.³⁴⁰ As the appellate panel explained, “[t] he Tribes’ unique role and their government-to-government relationship with the United States demand that their criticisms be treated with appropriate solicitude.”³⁴¹ Although the D.C. Circuit determined that the easement for the pipeline was appropriately vacated by the district court, but it concluded that it was not proper to halt pipeline operations without making the necessary findings for such injunctive relief—that is, findings of irreparable injury, inadequate other remedies, balance of hardships favors the plaintiff, and an injunction is in the public interest.³⁴² The Corps needed to go back and redo its environmental analysis, but shutting down the pipeline altogether was a bridge too far.³⁴³

The Dakota Access Pipeline litigation illustrates how treaty rights can be a powerful tool that can be used in conjunction with federal NEPA review comment processes to challenge potentially harmful infrastructure even when the project is near rather than on tribal land. However, there still can be a bias toward maintaining the status quo once something is built. Absent imminent risk to the environment or public health, it may be difficult to persuade a court that operation of existing infrastructure must be halted.³⁴⁴

Section 4(f) of the Department of Transportation Act is another federal environmental impact assessment framework that may require stakeholders to address tribal treaty issues. As a general matter, Section 4(f) prohibits transportation projects funded or approved by USDOT from using historic resources eligible for listing on the National Register of Historic Places—including tribal resources protected by treaty—unless no feasible and prudent alternative exists.³⁴⁵ After NEPA, Section 4(f) is the most frequently litigated environmental statute applicable to transportation projects. It is also the most frequent cause of court injunctions blocking transportation projects.³⁴⁶ And unlike NEPA (and the NHPA), Section 4(f) carries a substantive mandate to avoid or minimize harm to covered resources. As a result, it is often raised by tribal stakeholders.³⁴⁷

For transportation with the potential to impact aquatic resources, the Clean Water Act and the Rivers and Harbors Act are additional statutory frameworks in which tribal treaty concerns may be raised. These two statutes (and their implementing regulations) set out permitting processes requiring the Corps and the Environmental Protection Agency to carefully evaluate potential harms to aquatic resources of concern—including resources of concern to tribal stakeholders.³⁴⁸

Indeed, tribes have successfully intervened in Corps permitting processes to block development that threatened treaty rights. For example, the Lummi Indian Nation successfully invoked its treaty fishing rights to prevent the Corps from approving a proposed coal export terminal at Cherry Point, along

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³³⁸ Standing Rock, 985 F.3d at 1039.

³³⁹ Id. at 1044-50.

³⁴⁰ Id. at 1044.

³⁴¹ Id.

³⁴² Id. at 1050-54 (citing Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010)).

³⁴³ In September 2023, the Corps released its new Draft Environmental Impact Statement under NEPA for the Dakota Access Pipeline pursuant to the rulings of the D.C. Circuit and the district court. U.S. Army Corps of Engineers (Omaha District), Dakota Access Pipeline Lake Oahe Crossing Project Draft Environmental Impact Statement (Sept. 2023), https://usace.contentdm.oclc.org/digital/collection/p16021coll7/id/24595/rec/1. It remains to be seen whether this environmental document will also be subject to litigation.

³⁴⁴ Nevertheless, the example of the Keystone XL pipeline illustrates how sustained pressure and focusing information on significant environmental implications and infringement on tribal treaty rights can block projects. The Keystone XL pipeline’s path crossed through treaty and reservation borders, implicating the rights of numerous tribes, which raised arguments that the project threatened sacred sites, ancestral burial grounds, water resources, in violation of treaties. Elizabeth Ann Kronk Warner, Tribal Treaty Rights: A Powerful Tool in Challenges to Energy Infrastructure, 51 CONN. L. REV. 843, 876-77 (2019). The court decision vacating the environmental review for the Keystone XL pipeline did not expressly mention treaty rights, but those arguments were raised by tribal parties in connection with significant environmental effects of oil spills and climate change and impacts to cultural resources. Indigenous Envt’l Network v. U.S. Dep’t of State, 347 F. Supp. 3d 561, 590-91 (D. Mont. 2018). Such arguments could have even greater import today with the updated NEPA regulations requiring consideration of treaty rights in evaluation of impact significance and the environmentally preferable alternative. When President Biden came into office, he issued an executive order about addressing the climate crisis in which he canceled the Keystone XL pipeline’s permit, which had been reissued by President Trump. Executive Order 13990 of January 20, 2021: Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, 86 Fed. Reg. 7037, 7041 (Jan. 25, 2021). President Biden’s decision eventually prompted the developer to abandon the project. Jeff Brady & Neela Banerjee, Developer Abandons Keystone XL Pipeline Project, Ending Decade-Long Battle, NPR (June 9, 2021).

³⁴⁵ 49 U.S.C. § 303; 23 U.S.C. § 138; 23 C.F.R. pt. 774.

³⁴⁶ USDOT, FHWA, Environmental Review Toolkit, Section 4(f) Tutorial, Legal Overview, https://www.environment.fhwa.dot.gov/env_topics/4f_tutorial/legal.aspx (last visited May 24, 2024).

³⁴⁷ Id.

³⁴⁸ 33 U.S.C. § 1344 (requiring permits for discharge of dredged or fill material into jurisdictional waters); 33 U.S.C. § 403 (Section 10 of the Rivers and Harbors Act of 1899 prohibiting obstruction of navigable waters unless authorized); 33 C.F.R. § 322.1 (requiring permits for structures or work in or affecting navigable waters pursuant to Section 10 of the Rivers and Harbors Act of 1899).

Washington’s Salish Sea coastline. The terminal would have been the largest of its kind in North America. But its proposed location created operational conflicts with usual and accustomed Lummi fishing grounds protected by the 1855 Treaty of Point Elliott.³⁴⁹ Explaining that it had a fiduciary duty to consider treaty rights in makings its permitting decisions, the Corps concluded that the coal export terminal would impermissibly impair: (1) part of the Lummi Nation’s “usual and accustomed areas” (U&A) for fishing and crabbing; (2) the time and manner in which the Lummi Nation can fish in U&A; and (3) potential future herring fishing at the site.³⁵⁰

These are just a few illustrative examples of the interaction between federal permitting and environmental review requirements (on one hand) and tribal treaties and treaty rights (on the other). Tribes may also use federal environmental review and permitting processes not to block a transportation project, but to enhance the visibility of indigenous history and culture. For example, after indigenous artifacts were discovered at the site of a proposed highway exit ramp, the Delaware Tribe of Indians, the Saint Regis Mohawk Tribe, and the Stockbridge-Munsee Community Band of Mohican Indians used the NHPA review process to require the installation of commemorative murals and a plaque explaining the tribes’ history on the land.³⁵¹

The State of Washington also has its own environmental review statute, the State Environmental Policy Act (SEPA), which requires state and local agencies to evaluate environmental impacts associated with permitting for development, including impacts to tribal treaty rights.³⁵⁹ For example, when Tesoro Savage applied to the Washington Energy Facility Site Evaluation Council (EFSEC) for a permit for an oil shipping terminal at the Port of Vancouver, the Confederated Tribes of the Umatilla Indian Reservation, the Confederation Tribes and Bands of the

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³⁴⁹ Lynda V. Mapes, Tribes prevail, kill proposed coal terminal at Cherry Point, SEATTLE TIMES (May 9, 2016), https://www.seattletimes.com/seattle-news/environment/tribes-prevail-kill-proposed-coal-terminal-at-cherry-point/.

³⁵⁰ Memorandum for Record, NWS-2008-260, U.S. Army Corps of Engineers 20, 31-32 (May 9, 2016), http://www.nws.usace.army.mil/Portals/27/docs/regulatory/NewsUpdates/160509MFRUADeMinimisDetermination.pdf.

³⁵¹ Jim Franco, After delay, state installs murals recognizing Native Americans on Exit 3 flyover ramp, SPOTLIGHT NEWS (Apr. 7, 2021), https://spotlightnews.com/towns/colonie/2021/04/07/after-delay-state-installs-murals-recognizing-native-americans-on-exit-3-flyoverramp/; New York State Department of Transportation, Press Release, State Department of Transportation to Install Murals Honoring the Capital Region’s Rich Native American Heritage on the Northway Exit 3 Flyover Ramp (Jan. 22, 2021), https://www.dot.ny.gov/news/pressreleases/2021/2021-01-22; Jon Campbell, New York built a highway on Native land. A tribe isn’t happy, N. COUNTRY PUB. RADIO (Jan. 5, 2021), https://www.northcountrypublicradio.org/news/story/42903/20210105/new-york-built-a-highway-on-native-land-a-tribe-isn-t-happy.

³⁵² CAL. PUB. RES. CODE § 21000 et seq.; see also 14 CAL. CODE REGS. (CEQA Guidelines) §§ 15000-15387 (setting out regulations interpreting CEQA’s requirements). The regulatory provisions implementing CEQA are referred to as the “CEQA Guidelines” but they establish binding legal requirements and are not mere guidance. CAL. PUB. RES. CODE § 21083; CEQA Guidelines §§ 15000-15001, 15020.

³⁵³ CAL. PUB. RES. CODE § 21080.

³⁵⁴ CEQA Guidelines, Appendix G.

³⁵⁵ CAL. PUB. RES. CODE § 21080.3.1 (requiring consultation with tribes traditionally and culturally affiliated with the geographic area of the proposed project prior to release of a CEQA document where requested by a tribe and setting procedures for providing notice to tribes and for tribes to request consultation); see also CEQA Guidelines, Appendix G, § XVIII (setting checklist for evaluation of impacts to tribal cultural resources); CAL. PUB. RES. CODE §§ 21073 (defining “California Native American tribe” as California tribes on list maintained by Native American Heritage Commission), 21074 (defining “Tribal cultural resources” to include sites, features, places, cultural landscapes, sacred places, and objects with cultural value to a California Native American tribe recognized on a register of historic places or by a lead agency on a project).

³⁵⁶ CAL. PUB. RES. CODE § 21080.3.2. Any mitigation measures agreed on in tribal consultation must be recommended for inclusion in the CEQA document if determined to avoid or less the impacts. CAL. PUB. RES. CODE § 21082.3. Such mitigation measures adopted into a mitigation monitoring and reporting program are fully enforceable. Id.

³⁵⁷ CAL. PUB. RES. CODE § 21084.3(a).

³⁵⁸ Treaties with California tribes were never ratified by Congress and therefore do not carry the same legal force as those entered by other tribes across the United States. See, e.g., 1851-1852—Unratified Treaties Between California Indians and the United States, U.S. Government Treaties and Reports (2016), https://digitalcommons.csumb.edu/hornbeck_usa_2_b/5/; Larisa K. Miller, The Secret Treaties with California’s Indians, PROLOGUE, NAT’L ARCHIVES (2013), https://www.archives.gov/files/publications/prologue/2013/fall-winter/treaties.pdf.

³⁵⁹ See REV. CODE WASH. § 43.21C.031 (requiring an environmental impact statement for “major actions having a probable significant, adverse environmental impact”).

Yakama Nation, and the Columbia Inter-Tribal Fish Commission (representing four treaty tribes of the Columbia River) intervened to raise treaty rights as part of the environmental review and permitting.³⁶⁰ The tribes argued that the project would threaten fishing grounds used “since time immemorial” and that cultural resources and sacred sites along the rail corridor to the project site would be endangered by potential oil spills or fires, in violation of the treaties.³⁶¹ EFSEC unanimously recommended that Governor Inslee not approve the project in part because of “direct costs associated with oil spills, train derailments and fires, damage to the natural environment, and economic and social costs due to the impacts on [tribal] fisheries and to [tribal] cultural interest.”³⁶² EFSEC concluded that these impacts would negatively impact treaty rights.³⁶³ In January 2018, Governor Inslee agreed with EFSEC and rejected the project.³⁶⁴

Oregon law does not include the same type of state environmental impact assessment framework found in California and Washington. But state agencies have nonetheless taken tribal treaty concerns into account when permitting major projects. For example, the Oregon Department of State Lands (ODSL) denied a permit to fill waters of the state for the proposed Coyote Island coal terminal project in part because the project would have impacts on a “small but important long-standing fishery” used by tribes.³⁶⁵ When the project proponents appealed, the Yakama Nation, Confederated Tribes of the Umatilla Reservation, the Nez Perce Tribe, and the Confederated Tribes of the Warm Springs Reservation joined the proceedings before the Office of Administrative Hearings.³⁶⁶ These tribes raised tribal treaty fishing rights as a basis for objecting to the coal terminal and ultimately the parties entered into a consent agreement that resulted in withdrawal of the permit application.³⁶⁷

These examples illustrate how tribal participation in state permitting and environmental review processes, whether or not they explicitly require tribal consultation or consideration of treaty rights, affords tribes opportunities to raise treaties, cultural resource impacts, and more as legal bases for blocking or modifying infrastructure proposals. Even if states undertake efforts to construct new transportation facilities without any federal assistance or otherwise implicating federal environmental and permitting requirements, the influence of treaty rights and other aspects of sovereign tribal government authority are present in similar state processes.

c. Tribal Regulatory Authority

As explained in Section IV.C.1.c, tribal governments possess inherent regulatory authority over non–American Indian activities in Indian Country where there exists a consensual relationship between the non–American Indian entity and the tribe or where the activities impact an important part of tribal sovereignty.³⁶⁸ For example, construction of new transportation facilities on tribal land would likely require a government-to-government agreement subjecting the project to tribal environmental and labor regulations. Similarly, efforts to build new infrastructure in Indian Country would almost certainly impact tribal health and safety and other aspects of tribal sovereignty, giving tribes an additional claim to regulatory jurisdiction over non–American Indians. Project proponents should consult with relevant tribal agencies to plan new projects and determine the requirements with which project construction and operation will need to comply.

Of course, it is also possible, in theory, for a tribe to construct its own transportation facilities, on its own tribal land, solely using its own funding in which case it could do so subject only to tribal law, without regard for local, state, and federal requirements. In reality, however, any major transportation facility, even if entirely sited on tribal land, is likely to trigger some nontribal legal regime, whether through design, funding, construction, operation, or maintenance. It is difficult to imagine a plausible scenario where such a project would not require coordination with other government actors through funding, permits, or evaluation of cross-jurisdictional environmental impacts.³⁶⁹

D. State Department of Transportation Practices for Identifying and Resolving Potential Treaty Obligations and Issues

As discussed earlier in Section II.I, McGirt raised the prospect of significant new litigation challenging core assumptions about planning, operation, and development of transportation infrastructure in portions of the United States which have been the subject of tribal treaties. Because many of these disputes never ripen into active (much less published) cases, we anticipated that we might learn a significant amount about post-McGirt challenges from our interviews with representatives of state transportation agencies.

On the contrary, most interviewees suggested McGirt had not significantly changed the nature of working relationships between state transportation departments and tribal governments—not yet, anyway. As a result, our interviews primarily discussed the ways in which state transportation officials coordinate and consult with tribal representatives to work through

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³⁶⁰ State of Washington Energy Facility Site Evaluation Council, Report to the Governor on Application No. 2013-01 at 3, 47 (Dec. 19, 2017).

³⁶¹ Id. at 47-48, 83-84.

³⁶² Id. at 47-48, 96, 99.

³⁶³ Id. at 83-84.

³⁶⁴ Kelly Moyer, Inslee rejects controversial Vancouver Energy oil terminal, CAMAS-WASHOUGAL POST-RECORD (Jan. 29, 2018), https://www.camaspostrecord.com/news/2018/jan/29/inslee-rejectscontroversial-vancouver-energy-oil-terminal/.

³⁶⁵ Elizabeth Ann Kronk Warner, Tribal Treaty Rights: A Powerful Tool in Challenges to Energy Infrastructure, 51 CONN. L. REV. 843, 866 (2019).

³⁶⁶ Id.

³⁶⁷ Id.

³⁶⁸ Montana, 450 U.S. at 565-66.

³⁶⁹ Indeed, the authors of this report are not aware of any substantial tribal project that has avoided the need to comply with at least some nontribal laws and regulations.

project-specific issues as they arise, much as those representatives had done in the years preceding McGirt.

The following discussion summarizes the key themes that arose in our interviews with state transportation officials.

1. Political Leadership

A theme that arose in several discussions was political leadership, with interviewees noting that relationships could shift depending on the policy priorities and political dynamics among state and/or tribal leaders. In Oklahoma, for example, the current governor has worked to limit the application of the McGirt decision as much as possible, and the state transportation agency largely defers to FHWA’s interpretation of treaties and their applicability. The Colorado representative that we spoke with likewise observed that the relationship between her agency and the two federally recognized tribes in Colorado could change significantly depending on the make-up and priorities of tribal councils and/or agency leadership.

2. State Authorities

Each state that we interviewed for this report described a different approach to tribal relations, which was often dictated by state authorities. In some instances, statutes, regulations, or executive orders clearly set out expectations of all state agencies, whereas transportation officials in other states were guided by agency-specific policies.

In Utah, for example, Executive Order 2014-005 recognizes the right of tribes to self-government, articulates the government-to-government relationship between the state and tribal governments, and directs that when a state agency intends to implement a state action with tribal implications, consultation is to occur “as part of a meaningful and comprehensive process that promotes effective communication between the tribe and the agency.”³⁷⁰ The executive order directs that consultation is to occur as early as possible, is to be carried out in good faith and with honesty and integrity.

In contrast, Michigan Transportation Commission Policy 10240 sets out the ways in which Michigan DOT would operate in accordance with Executive Orders 2004-5 and 2019-17 on state-tribal relations.³⁷¹ Policy 10240 directs the agency to pursue a proactive and consistent process in tribal affairs and extends commitments to the state’s federally recognized American Indian tribes to recognize their sovereignty and right of self-governance. It establishes the Tribal Affairs Coordinator position, operating under the guidance of the agency’s Director and Chief Administrative Officer, to manage department-wide coordination of the Tribal Affairs Program, outlines steps the agency is to undertake in performing government-to-government consultation with tribes, and calls for annual training on Tribal-State relations for department employees with direct tribal interaction.

3. Early and Frequent Consultation and Coordination

Every state representative with whom we spoke emphasized the importance of open lines of communication with tribes as instrumental in identifying and resolving issues. Several people mentioned that talking with tribal representatives early in the project-planning process, face-to-face, can help to establish trust and identify issues that will have to be worked through. Michigan’s representative, in particular, stated that she regularly advised her staff that “regular coordination can avoid consultation,” noting that consultation was a much more formal process (defined timelines and expectations, for example) than staff-to-staff coordination via regular check-ins. This was the closest any of the interviewees came to identifying specific “best practices” or procedures for addressing McGirt.

Multiple state representatives pointed to their role with a statewide commission (or similar body) as instrumental in facilitating regular communication with tribal representatives and maintaining positive relationships. This included, for example, Colorado DOT’s seat on the Colorado Commission of Indian Affairs, Michigan DOT’s attendance at meetings of the United Tribes of Michigan, and Iowa DOT’s participation in the State Commission of Native American Affairs.

The Arizona DOT representative noted that in the past two years, ADOT had materially expanded its staffing capacity to improve working relationships with tribal governments. This included establishing an ADOT Native Nations Ambassador on Infrastructure Development position as well as an ADOT Environmental Planning Tribal Liaison position. These two positions, combined with two existing ADOT Planning Division Tribal Liaisons and ADOT Right of Way Group Tribal Liaison, comprised the ADOT Tribal Relations team. That team responds to tribal-related requests and inquiries and conducts internal coordination on tribal-related issues.

4. Tribal Citizenship

Representatives of two state transportation agencies mentioned their own tribal citizenship during the interview. The New Mexico DOT representative is the former Governor of the Pueblo of Acoma. He mentioned that because he was a former tribal leader, he often had the benefit of mutual respect with tribal leaders and was able to facilitate conversations when issues arose between tribes and the New Mexico DOT. One representative from the Washington DOT whom we interviewed was a citizen of the Snoqualmie Tribe, and the other representative in our interview was a citizen of the Puyallup Tribe; both referenced the benefits of their tribal citizenship and perspectives when working on difficult issues with Washington tribes.

5. Education and Understanding

Several state agency representatives stressed the importance of educating staff who will be interacting with tribal representatives. One representative discussed the importance of know-

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³⁷⁰ See Governor’s Executive Order EO/2014/005: Executive Agency Consultation with Federally-Recognized Indian Tribes (July 30, 2014), https://rules.utah.gov/execdocs/2014/ExecDoc155570.htm.

³⁷¹ See Michigan Department of Transportation, Tribal Affairs Policy 10240 (July 23, 2020), https://www.michigan.gov/-/media/Project/Websites/SOM/Media/SOM-Government---Tribal-Government/TribalConsultation-Policies/MDOT_Documents_10240_was10140_Tribal_Affairs_Policy.pdf?rev=be9cd37b67f344a498de3622e5b14dfe.

ing what a treaty actually says, rather than simply operating from memory or from a general understanding; getting a detail wrong can backfire and set the relationship back significantly. Another observed that transportation officials unaccustomed to working regularly with Native American tribes would never have occasion to think about treaty rights, and that they would need to be educated about the nature of treaties as legally binding documents signed by sovereign governments. The Arizona DOT representative noted that their agency had developed a five-module training course—including material addressing treaties—to assist its personnel to understand and carry out tribal consultation processes at the various levels of state-tribal intergovernmental relations.³⁷²

Another state representative stressed the importance of providing cultural sensitivity training to non–Native staff, particularly to those individuals who will be working with tribes to mitigate impacts on treaty rights such as the right to hunt or fish in a certain area. They urged non–Native staff to imagine how it might feel if the state were seeking to take away one of their constitutional rights—say the First Amendment right to free speech—and how disorienting it might be to be asked to consider “mitigation” for such a proposal. They acknowledged that this was a difficult question for them to ask, and that it was even more difficult to answer.

6. Access to Decision-Makers

The Iowa representative we spoke with noted that certain state transportation agencies had robust tribal programs in part because the tribal coordination role was filled by someone who was close to the agency’s Director on the organizational chart.

Michigan is often identified as one such state, and the Michigan DOT representative whom we spoke with specifically touted her placement in that agency’s executive office as instrumental to her ability to facilitate resolution of state-tribal issues. While regional staff is often the first point of contact on tribal affairs matters, she is the individual who manages formal consultation. She also noted that her ability to expedite and elevate issues to agency leadership not only provided greater weight and credibility when she engaged with tribes in Michigan, but also allowed her to get issues in front of the agency’s director quickly, facilitating critical responsiveness when needed.

7. Reserved Rights to Hunt, Fish, and Gather

Representatives from Oregon and Washington discussed the need to work through matters involving usufructuary rights reserved in treaties with Native American tribes, particularly rights to hunt or fish in certain U&A.

They were generally familiar with cases adjudicating such rights, including both (a) the right to conduct hunting and fishing activities in U&A, which has been found to be a property right the abridgment of which is a taking, and (b) the right to the fish or wildlife, itself, in quantities sufficient to make a reasonable living. Thus, when a proposed major road or bridge project might disrupt tribal hunting or fishing activities, the state transportation agency must consult with the affected tribes and negotiate mitigation agreements to compensate tribal citizens for impacts on treaty rights that cannot be avoided or minimized.

Other states mentioned the need to work with tribes to effectuate treaty rights to gather, such as by notifying tribes in advance of chemical spraying along highway rights-of-way, so that tribal gathering may be completed ahead of those activities.

8. Toll Roads, License Plates, and Reserved Rights to Free Access

Another reserved right that came up in interviews was the right of free travel. While precise treaty terms likely vary, the right has created challenges for state transportation agencies surrounding toll roads and license plates.

For example, the Oregon DOT is considering a statewide tribal exemption from tolls, since several tribes in Oregon had treaties with free passage provisions. In Oklahoma, the Turnpike Authority implemented PlatePay, a cashless tolling system that allows motorists to drive through toll plazas without stopping to pay a toll and to instead pay tolls online at a later date. Oklahoma tribes that issue tribal license plates record license data with the Oklahoma Department of Public Safety for law enforcement purposes, but the Turnpike Authority does not have access to that information for non–law enforcement purposes.

In addition, tribes in Oklahoma may only issue license plates for residents of the tribe’s jurisdictional area; tribal citizens living outside of the jurisdictional area are required to get a state license plate. This requirement had not been enforced for many years, but the state has recently issued tickets to individuals who live outside of their tribe’s jurisdictional area but have tribal plates. While those tickets generally are dismissed, this situation has created misunderstanding and concern among tribal citizens and leaders in Oklahoma.

9. Cooperation and Interpretation

Several interview subjects mentioned the spirit of cooperation that exists between their state transportation agency and resident Native American tribes. More than one individual interviewed mentioned the need to avoid getting defensive and to be open to feedback when dealing with Native American tribal representatives.

The representative from Iowa DOT, for example, described his agency’s work with the Federal Highway Administration and the Meskwaki Nation to create a dual-language sign on U.S. 30 to mark the boundary of the Meskwaki Settlement. He also shared information on one of Iowa DOT’s rest areas along Interstate 29 in the western portion of the state, wherein the agency used information from its excavation of earth lodges in the 1960s to tell the history of the area and the stories of people who lived there through interpretive plaques, statuary, and murals commissioned by four Native American artists.

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³⁷² See ADOT Tribal Transportation Consultation, Online Training Course for ADOT Personnel, Handbook (May 2020), https://apps.azdot.gov/files/training/az-tribal-training/ADOT_TribalTrainingHandbook.pdf. Additional resources are available at https://aztribaltransportation.org/training.

10. Transportation Funding

Grant funding that state DOTs receive from FHWA for transportation projects came up in multiple interviews with state transportation officials. First, two states noted that tribes frequently request that a portion of that funding be set aside for projects on tribal lands. State DOT representatives noted that while dedicated set-asides could help their relationships with tribes, they might also raise questions of fairness to other local government entities who compete for the same grant funds.

One state noted that tribes who get federal funding directly from the FHWA receive grant funds faster than those who receive federal funding through the BIA. Colorado DOT’s representative noted multiple instances where her agency had worked with tribal governments to apply for and obtain federal grant funding to do projects that benefit tribal communities, including a passing lane and a bridge project. In a similar vein, the Arizona representative noted that because funding for infrastructure improvements is often the driving force for state projects, partnering with tribal communities and partner agencies (counties, cities, towns, federal agencies, railroads, and state regional planning organizations) is key when applying for grants since they are highly competitive.

11. Additional Resources

Representatives of state transportation agencies shared several ideas for additional resources that could assist their work with Native American tribes on the development and operation of state transportation infrastructure (Table 2).

The Oregon DOT representative suggested that a search-able database with a breakdown of treaties in both Oregon and Washington could be extremely useful, as treaties themselves are long and cumbersome. The Washington DOT representative added that they would benefit from a database containing examples of mitigation that had been developed for other projects, which they could use to provide examples during consultation with tribes on a project.

One state also suggested that they and other state transportation agencies would benefit from advice on best practices for working with federally recognized tribes that do not have treaties. Several state representatives mentioned the need for additional staff to address issues as they arise, particularly in attorney roles.

Table 2. State Transportation Agency Interviewees

V. CONCLUSIONS AND RECOMMENDATIONS

The findings presented in Section IV appear to point in different directions. On one hand, our legal research suggests tribal plaintiffs have renewed interest in treaty claims challenging transportation infrastructure and, further, that they have actively relied on McGirt when bringing those claims. Although it is hard to be sure, there appear to be more (or, at minimum, more visible) treaty claims filed today than there were prior to McGirt. At least some of those claims have recently succeeded. Indeed, there can be no reasonable doubt that McGirt is a powerful pro-tribal precedent on which future plaintiffs could likewise rely. And additional legal tools, such as recently promulgated environmental regulations directing federal agencies to consider treaty issues in their environmental impact assessment processes, continue to emerge.

On the other hand, our interviews with representatives of state transportation departments suggested that McGirt is not currently a matter of significant discussion or concern, even in jurisdictions where treaty issues sometimes arise. Representatives of the state departments of transportation with whom we spoke did not report specific best practices or due diligence lists developed after McGirt. Nor did they identify any McGirt-specific problems, challenges, or dispute resolution needs.

It is hard to be sure what accounts for this disconnect. One possibility is that interviewing representatives of different departments of transportation would yield different results. For example, it is possible that officials in New York have developed post-McGirt practices or procedures for addressing treaty issues—after all, there have been several recent challenges to operation of the New York Thruway across tribal lands. It should be noted, however, that we did speak to representatives of two of the states most likely to have significant experience and/or concern with McGirt-based claims: Oklahoma (from which McGirt arose) and Washington (also a venue for significant treaty litigation, including United States v. Washington), and neither seemed to indicate that McGirt was front of mind.

A second possibility is that state departments of transportation are not—or not yet—the targets of significant tribal claims. The Swinomish litigation, for example, involved tribal treaty claims against a freight railroad. Several other recent cases (e.g., Mandan, Hidatsa, and Arikara Nation, Bad River Band) arise from pipelines and other energy infrastructure. And the Lac du Flambeau Band’s road closure dispute involves local government, not state transportation agencies. None of these matters directly implicates a state department of transportation.

A third, related possibility is that state departments of transportation need more time to recognize McGirt’s importance. Cayuga v. Hochul, one of the most direct applications of McGirt to an existing transportation facility, was filed just a few months ago; if it is decided in favor of the tribal plaintiff, state departments of transportation will surely take notice.

Of course, it is also possible that there is no conflict to explain. State departments of transportation appear to recognize the importance of treaty issues (generally) and McGirt (specifically) while also remaining committed to best practices developed in other contexts: early and frequent consultation; increased education and understanding; joint tribal-state commissions and other collaborative bodies; and robust legal and policy support for tribal engagement. In some ways this is the most reassuring possibility of them all, for it suggests existing, well-established tools for bringing people together can help right some of our nation’s oldest and deepest wrongs.