July 27, 2020

Upholding Tribal Treaties with the Clean Water Act

Amanda Rogerson and Michael Lopez

During the nineteenth century, numerous tribal nations in the Pacific and Inland Northwest signed treaties with the United States. Through these treaties, Pacific and Inland Northwest tribes ceded millions of acres of the land they had called home for millennia. These tribes also reserved to themselves, through these treaties, however, certain rights vital to their way of life, including the right to continue fishing at all traditional places for subsistence, ceremonial, and commercial purposes—a practice “not much less necessary to the existence of the Indians than the atmosphere they breathe[].” United States v. Winans, 198 U.S. 371, 381 (1905).

The bargains struck in these treaties carry overriding legal and moral weight. Legally, these bargains are enshrined in the U.S. Constitution as “the supreme law of the land.” U.S. Const. Art. VI, cl. 2. Morally, these bargains are the United States’ solemn word, and are crucial to protecting the cultural integrity of the Pacific and Inland Northwest tribal communities. Fishing and the cultural, economic, and political traditions with which it is intertwined, are central to the Pacific and Inland Northwest tribes’ identity, spirituality, and ways of life.

Unfortunately, decades of American industrial policy threaten these tribes’ carefully bargained for, constitutionally protected right to engage in fishing. Despite the passage of the Clean Water Act (CWA), 33 U.S.C. § 1251 et seq.—the purpose of which was to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters”—the Pacific and Inland Northwest’s waters remain polluted. And this pollution has made it dangerous for the region’s tribal members to exercise their treaty-protected right to fish as a way of life. Tribal members who rely on fish are putting their own health and that of their family members at risk when they consume all the fish they harvest. Under recently approved water quality standards for numerous toxic pollutants in the state of Idaho, for example, Nez Perce tribal members, who are known to consume higher levels of fish than the general population, can now only consume a fraction of fish they typically harvest and eat without significantly increasing their risk of developing cancer.

This deeply unfortunate situation is at odds with the United States’ legal obligation to ensure that tribal members can continue to exercise the fishing rights they bargained for in their treaties. The United States’ legal obligation flows from numerous sources including the U.S. Constitution, which places treaties at the top of the hierarchy of American law. U.S. Const. Art. VI cl. 2 (“...all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land”). It also flows from well-established contract law principles, which prohibit one party to a contract from taking actions that make it impossible for the other to enjoy the benefit of the bargain it has struck. See Restatement (Second) of Contract § 205 (“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.”); Robert S. Summers, The General Duty of Good Faith—Its Recognition and Conceptualization, 67 Cornell L. Rev. 810, 837 (1980) (noting that contract law principles prohibit “interference with or failure to cooperate in the other party’s performance”); see also Washington v. Wash. State Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979) (“A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations”) (internal citation omitted). And, it also flows from federal case law, which has provided clear rules for properly interpreting and understanding the legal force of tribal treaties.

All treaties between the United States and Indian tribes are governed by special rules of interpretation. These rules are known as the “Indian canons of construction” and “are rooted in the unique trust relationship between the United States and the Indians.” Oneida County v. Oneida Indian Nation, 470 U.S. 226, 247 (1985) (internal citations omitted). Because of this trust relationship—because the United States “has charged itself with moral obligations of the highest responsibility and trust” toward the tribes, Seminole Nation v. United States, 316 U.S. 286, 296-97 (1942) (footnote omitted)—any bargain struck between the United States and a tribe must be construed according to principles uniquely protective of Indian interests. Treaties must be read “liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985) (internal citations omitted). They must be understood “not according to the technical meaning of [their] words to learned lawyers, but in the sense in which they would naturally be understood by the Indians[.]” Passenger Fishing Vessel, 443 U.S. at 676. And, they must be interpreted with an eye toward accomplishing the treaty’s fundamental purpose: to protect and promote tribal sovereignty, cultural integrity, and way of life. See, e.g., White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144-45 (1980) (requiring “examin[ation] of the relevant federal treaties and statutes in terms of both the broad policies that underlie them and the notions of sovereignty that have developed from historical traditions of tribal independence”).

Applying these canons, there is little doubt that when the United States promised Pacific and Inland Northwest tribes, through treaty, that they could continue to fish in their traditional places, that the United States thereby also guaranteed these tribes that it would not pursue policies that made it impossible for the tribes to engage in the cultural practices they had reserved. For the United States government to subsequently pursue policies that undermine tribal members’ fishing rights is inconsistent with its trust responsibilities toward tribes, inconsistent with the tribes’ own understanding of their treaty-reserved rights, and inconsistent with the fundamental purpose of the Pacific and Inland Northwest tribal treaties it signed. No matter what lens you choose to look through, there simply is no plausible legal theory on which the United States could guarantee the right to fish with one hand, while simultaneously undermining the conditions that make treaty-reserved fishing possible with the other.

The U.S. Environmental Protection Agency (EPA) once agreed. In implementing the Clean Water Act, a statute that expressly acknowledges the supremacy of treaties in American law, EPA previously sought to safeguard tribal treaty-reserved fishing rights in the American Northwest. 33 U.S.C. § 1371. Indeed, in 2012, EPA disapproved water quality standards developed by the state of Idaho precisely because Idaho had failed to consider available fish consumption rates among tribal members in the state. When partially disapproving Washington’s water quality standards in 2016, EPA also emphasized its then policy of requiring states to develop water quality standards that “effectuate and harmonize treaty-reserved fishing rights with the Clean Water Act.” Revision of Certain Federal Water Quality Criteria Applicable to Washington, 81 FR 85417, 88424 (Nov. 28, 2016). Under that policy, EPA prevented states from developing water quality standards that infringed on treaty-reserved rights to fish.

In the last couple of years, however, EPA has reversed course. At the urging of industry and without meaningful analysis, the agency announced that its previous approach to implementing the CWA was improperly based on a “new legal theory and framework within which EPA and states with delegated CWA authority would be required to adopt new approaches in order to “effectuate and harmonize” tribal treaty rights within the CWA . . . .” Environmental Protection Agency: Technical Support Document: EPA Approval of the State of Idaho’s New/Revised Human Health Water Quality Criteria for Toxics and Other Water Quality Standards Provisions Submitted on December 13, 2016 (2019), at 10. In the wake of this announcement and despite vehement protests from Pacific and Inland Northwest tribes, EPA has approved water quality standards in Idaho that are even more lax than the standards it had previously rejected as insufficiently protective of tribal fishing rights. EPA took similar action in the state of Washington, and approved water quality standards under the CWA that it had previously rejected. EPA did so despite the fact that it faced unanimous tribal opposition and that, under the new standards, it will be impossible for Northwest Indians to safely consume all the fish they harvest.

In light of the well-established legal principles this article has reviewed, it is obvious that EPA’s prior policy of ensuring that state water quality standards uphold tribal subsistence rights was grounded in anything but a “new legal theory and framework.” Instead, EPA’s previous policy flowed from well-established constitutional, contract, and treaty-law principles. And those principles, in turn, enshrine an obvious moral truth: when our government promises to respect a people’s central cultural practice, it cannot subsequently choose to pursue policies that make it impossible for that cultural practice to persist. Otherwise what good is our country’s word?

EPA’s recent decision to repudiate a legal framework that protects tribal treaty rights in the Pacific and Inland Northwest is extremely troubling. Simply put, the United States is not currently upholding its end of the bargain it struck with the Pacific and Inland Northwest tribes. EPA today is failing to implement the CWA in a manner that protects the health and vitality of tribal members and the tribal communities that practice subsistence fishing. In order to ensure that the United States’ supreme laws of the land and its foundational bargains with Pacific and Inland Northwest tribes are upheld, states and EPA must ensure that state water quality standards issued under the CWA do not conflict with or undermine tribal treaties. In real terms this means requiring water quality standards in the Pacific and Inland Northwest that protect tribal fishers’ treaty-reserved right to safely consume the fish they harvest.

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Amanda Rogerson and Michael Lopez

Ms. Rogerson is a staff attorney with Advocates for the West in Boise, Idaho and a former staff attorney with the Nez Perce Tribe’s Office of Legal Counsel. She may be reached at amanda.rogerson@gmail.com. Mr. Lopez is Senior Staff Attorney with the Nez Perce Tribe’s Office of Legal Counsel, in Lapwai, Idaho, and a member of the editorial board of Natural Resources & Environment. He may be reached at mlopez@nezperce.org.