Tribal Treaty Rights: A Powerful Tool in Challenges to Energy Infrastructure

Energy infrastructure projects throughout the United States are proliferating at a rate unseen in generations. Demand for coal in Asia has resulted in the proposed construction of terminals in the Pacific Northwest to allow for coal to be shipped abroad. Technological advances leading to the efficient extraction of resources using “fracking” lead to increased demand for pipelines across the country. As the demand for energy infrastructure increases, so too does opposition to these projects. Because such projects necessarily crisscross the country encroaching on tribal lands, tribes often find themselves at the vanguard of efforts to halt or slow down such construction. Tribes search for legal claims that may assist them in their efforts. This Article presents a viable option for tribes opposing such development—the assertion of tribal treaty rights. In many instances, tribal challenges based on tribal treaty rights or legal rights implicating treaty rights have been successful. This Article begins with a description of tribal treaty rights and how courts have interpreted those rights. This section demonstrates that courts have consistently upheld tribal treaty rights through 2019. The Article then focuses on two types of energy infrastructure projects, terminals and pipelines, where tribes have relied on their treaty rights, either explicitly or implicitly, to block construction. Examination of these tribal efforts yields helpful guidance for tribes interested in halting similar energy infrastructure moving forward, as well as important lessons for companies and entities wishing to engage in the development of such projects. There are examples of where tribal treaty rights have explicitly halted terminal construction or were used in conjunction with other legal claims to halt construction. The lessons from the pipeline examples are less clear. Tribal treaty rights have been raised as legal objections to the construction of pipelines, but, to date, courts have not rested decisions to halt or slow down construction of pipelines solely on the assertion of tribal treaty rights. Taken together, however, these recent case studies demonstrate that the assertion of tribal treaty rights remains a viable and sometimes potent legal argument to halt and even end the construction of energy infrastructure projects that potentially threaten the tribal environment and tribal treaty rights