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Indian tribes and their members are leading a revived political, legal, and social movement to protect the nation’s natural resources. In doing so, tribes and their allies employ many effective strategies but core to the movement are the historic promises made to tribes by the United States through treaties. Tribes are asserting treaty protected rights, which the United States Constitution upholds as the supreme law of the land, to defend the resources on which they and their ancestors have relied for generations. Those claims have resulted in significant legal victories, igniting a broader movement in favor of tribal sovereignty and securing a prominent and perpetual tribal presence in the movement and on the ground. Given the strength of this modern movement and the centrality of treaty rights to its success, it is hard to believe that, just two generations ago, those rights faced seemingly existential threats. Notwithstanding bedrock Supreme Court precedent from the first half of the 1900s recognizing the supremacy of Indian treaties, tribal members exercising the rights those treaties guaranteed were under attack in the Pacific Northwest and the Great Lakes, with armies of state wildlife rangers and law enforcement arresting tribal members for not following state laws and regulations. Then, in 1968, the Supreme Court cut against its earlier solicitude for tribal treaty rights by opening the door for broad state power to establish laws, rules, and regulations that could govern tribal members engaged in treaty-reserved activities. Facing escalating harassment from state authorities, the Court’s endorsement of state priorities seemed to leave little room for the meaningful exercise of treaty rights as the tribes and tribal members themselves saw fit.
Beyond the Belloni Decision: Sohappy v.Smith and the Modern Era of Tribal Treaty Rights
, 50 Envtl. L. 387
Available at: https://scholarship.law.umt.edu/faculty_lawreviews/193