“As long as the rivers run, as long as the tide flows, and as long as the sun shines, you will have land, fish and game for your frying pans, and timber for your lodges,” Washington Territorial Governor Isaac Stevens reassured the signatories of the 1855 Treaty of Point Elliott.1 The Duwamish, Suquamish, Snoqualmie, Snohomish, Lummi, Nooksack, Skagit, Swinomish, and other allied tribes’ delegates took him at his word when formulating the agreement.2 Yet today, in what is now Washington State, climate change threatens to dry rivers, raise tides, burn timber, and deprive Indigenous communities of ancestral lands and subsistence sources.3
Climate conditions disproportionately impact Native nations, especially in coastal regions like the Pacific Northwest.4 Indigenous peoples are turning to traditional management practices to revive struggling ecosystems.5 The Swinomish Tribe, sitting on low-lying coastal land it has inhabited for ten thousand years, calls itself the People of the Salmon.6 But the centerpiece of its culture is in danger; due to warming waters, the salmon season has shrunk from eight months to a few days.7 To fight the further degradation of the coastal habitat, the Tribe has invested in restoring tidelands and channels, planting trees along streambeds to cool waters, cultivating native plants to manage coastal flooding naturally, and restoring reefs to reduce ocean acidification.8 Even with these efforts, experts estimate that it could take ninety years for their fisheries to recover.9 This climatological innovation illustrates Indigenous resilience;10 however, tribes alone should not bear the burden of these mitigation efforts.
As climate conditions worsen, scholars and tribal leaders have proposed using treaty-based litigation to spur remediation of tribal lands.11 Some have highlighted how tribes are both adapting to climate change12 and fighting to maintain treaty rights as climate change forces migration away from treaty homelands.13 Others have observed that tribes are well positioned to bring these claims because “tribal treaty rights claims may face fewer issues related to redressability, such as manageable standards of judicial review and concerns about the political question doctrine, as compared to other climate change suits.”14 Several have argued the federal government must act proactively to reduce the effects of climate change on Indigenous homelands to fulfill its federal trust obligation as a guardian to tribal interests.15 And a few have pointed to litigation from tribes in Washington State as illustrating that state and federal governments must affirmatively protect treaty habitats.16 Despite academic interest in this area, treaty-based litigation to combat the effects of climate change remains relatively untested.17
Another strand of scholarship focusing on interpretative theories in American Indian law has identified the growing utility of the Indian canons of construction to treaty-based litigation.18 The Supreme Court established these canons in the nineteenth century.19 The purpose of these interpretive rules is to ensure that “[t]he language used in treaties with the Indians should never be construed to their prejudice.”20 While the U.S. Supreme Court has applied the Indian canons since the 1800s, its adherence to them has waxed and waned over two centuries.21 Following Justice Gorsuch’s arrival, the Court has more explicitly embraced the third canon of interpreting treaty language in the way that Indigenous peoples would have understood it at the time of signing.22 The result has been resounding victories for tribes.23 While publications about treaties and climate change have discussed the canons, they have not extensively examined the third canon and its utility to climate change suits.24 All the canons are crucial in treaty-based litigation, but this Chapter focuses on the third as it especially empowers Indigenous perspectives and emphasizes Native nations’ sovereignty in making these agreements.25 This approach may yield better litigation outcomes for tribes than pursuing causes of action under federal law that do not foreground Indigenous voices.
This Chapter argues that by showing courts how tribes would have understood treaty language at the time of signing, tribes can successfully sue to enforce treaty provisions that may blunt the worst impacts of climate change on traditional lifeways. Because many tribal hunting, fishing, and gathering resources are disappearing due to environmental degradation, this interpretive canon may be a potent tool for tribes in climate change litigation. By underscoring Indigenous understandings of these resources’ preservation in perpetuity, treaty-based litigation may force states and the federal government to protect this wildlife, even as it faces extinction fueled by climate change. Tribes may seek government removal of man-made structures that harm the environment and support for state-tribal and federal-tribal co-management of re-sources, among other remedies. Ultimately, by integrating Indigenous worldviews into legal arguments via this canon, tribes may convince federal courts to vindicate the rights of nature for the first time.
Section A gives background on treaty-making with Native nations, tribal litigation against states and the federal government, and the Indian canons of construction. Section B shows how the third canon played a critical role in the long-running United States v. Washington26 (Culverts Case) litigation and Supreme Court treaty cases, which provide precedents for tribes’ climate change suits. Section C surveys how tribes have brought climate-related suits against state governments and the federal government in the past two years. It suggests that tribes should explicitly invoke the third canon in suits addressing megafires, drought-stricken rivers, and fossil fuel pollution plaguing tribal lands. Section D addresses counterarguments and illustrates how this canon will effectively defend tribes’ rights, even as available resources are rapidly disappearing due to climate change.
1. Native Nations, Treaty-Making, and Sovereign Agreements. — Between 1778 and 1868, the United States ratified approximately 368 treaties with Native nations.27 These agreements were between sovereigns — negotiated by federal commissioners of an American empire intent on expansion and tribal representatives seeking to shield their people and lifeways from settler violence.28 Tribes ceded millions of acres in exchange for the federal government’s guarantee of tribal self-government,29 as well as hunting, fishing, and gathering rights. Under the U.S. Constitution, these treaties are the “supreme Law of the Land,” and courts are bound to uphold their terms.30 There are 574 federally recognized tribes and hundreds of state-recognized tribes, many of which were parties to these documents ratified by Congress.31
But some tribes do not have these documents.32 Because formal congressional treaty-making with tribes ended in 1871, many Native nations instead procured executive agreements or sought legislation to protect tribal sovereignty for the last 150 years.33 The move away from ratifying treaties was characteristic of not just federal Indian law but also international law in the late nineteenth and especially twentieth centuries, when executive agreements and legislation supplanted the old form of treaty-making.34 Recently, some courts have refused to apply the Indian canons of interpretation to these statutes.35 Yet this ignores the profound role Native nations had in shaping these agreements by legislation.36 Courts should continue to apply the Indian canons to safeguard the sovereign interests of tribes in these more modern cases of agreement-making, which the Supreme Court has held to have the same status as treaties.37
2. Litigation Possibilities. — As these agreements constitute federal law, the federally recognized tribes — or the United States on behalf of tribes — may litigate to enforce treaty rights.38 The United States can sue states that infringe on treaty rights in federal court and has done so on numerous occasions.39 While tribes typically cannot sue states,40 they can ask states to waive their sovereign immunity, request that the federal government sue on their behalf, or seek prospective equitable relief against a state official who violated a treaty.41 Beyond suing states, tribes can sue the federal government for breach of its treaties if the U.S. government consents to suit.42 They can also sue agencies.43 But in some areas, tribal suits against the federal government are rare, including for environmental harm to tribal lands held in trust or ecological damage on off-reservation hunting and fishing grounds recognized in treaties.44 But moving forward, tribes might begin suing to remove man-made structures that exacerbate climate change’s effects, to force the federal government to adopt better management practices, or to stop permitting of industries that harm the environment of hunting, fishing, and gathering species protected by agreements between the United States and Native nations.45
3. Indian Canons of Construction. — The Supreme Court first articulated the Indian canons in 1832 in Worcester v. Georgia.46 The canons interpret treaties to “manifest a firm purpose to afford that protection which treaties stipulate”47 and ensure that “[t]he language used in treaties with the Indians should never be construed to their prejudice.”48 There are four canons.49 The first canon mandates that courts construe treaties, agreements, statutes, and executive orders liberally to tribes’ benefit.50 The second resolves ambiguities in treaties, agreements, statutes, and executive orders in favor of tribes.51 The third requires judges to interpret the language of treaties as Indians would have understood it at the time.52 And the fourth dictates that the rights reserved by treaties persist unless Congress explicitly abrogates them.53 Together, these canons recognize that tribes were at a disadvantage in the treaty-making process: often their “only knowledge of the terms in which the treaty [was] framed [was] that imparted to them by the interpreter employed by the United States.”54 They also respect that tribes made tremendous land concessions to procure terms; indeed, the canons acknowledge tribes’ preexisting rights, such that a treaty is “not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted.”55 The Court has been particularly committed to preserving hunting, fishing, and gathering rights.56
B. The Use of the Third Canon in Recent Cases
Recent litigation suggests that tribes can use the third canon to combat climate change’s effects on tribal lands. Although other canons are useful and should be cited in these cases, the third canon’s emphasis on original Indigenous understandings of treaties especially allows for creativity in thinking about how to hold the government to its treaty guarantees on Indigenous terms.
1. United States v. Washington. — These cases show how tribes can employ the third canon to enforce treaty rights affected by climate change and to interpret treaty rights to impose affirmative obligations on the states — and the United States — to take action to ensure that the environment does not become degraded to the point that tribes cannot exercise their treaty rights. This line of litigation has spanned nearly fifty years.57 The ongoing dispute revolves around the tribal fishing rights established in the eleven treaties negotiated by Washington Territorial Governor Isaac Stevens with tribes between 1854 and 1855.58 These treaties almost identically59 provide that “[t]he right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory.”60 Throughout the 1950s, 1960s, and early 1970s, state officers harassed and arrested tribal members exercising these rights on nonreservation land.61 In response, in 1970, the U.S. Attorney for the Western District of Washington sued the State for injunctive relief on behalf of the United States and seven tribes to allow tribal citizens to assert their fishing rights.62
The 1974 decision by Judge Boldt upheld the tribes’ right to fish off-reservation under the third canon.63 The district court noted that “[t]reaties with Indian tribes must be construed . . . with the meaning they were understood to have by the tribal representatives at the treaty council and in a spirit which generously recognizes the full obligation of this nation.”64 Based on this canon,65 the court recognized that every fishing ground that tribal members had customarily fished at “from time to time at and before treaty times, however distant from the then usual habitat of the tribe, . . . is a usual and accustomed ground or station at which the treaty tribe reserved . . . the right to take fish.”66 Environmental degradation could not abrogate these rights, for “changed conditions affecting the water courses and the fishery resources in the case area have not eroded and cannot erode the right secured by the treaties.”67 While later decisions modified the tribes’ allocation,68 sixty-plus opinions published since 1974 have upheld Judge Boldt’s decision.69
In 2001, the United States and tribes party to the treaty again sued the State to replace its state-managed culverts over streams and rivers containing salmon.70 The culverts inadvertently obstructed the passage of salmon on a thousand miles of stream, resulting in substantial decreases to their population.71 Both the tribes and the United States requested a declaration that the Stevens Treaties’ fishing clauses imposed a duty on the state government “to refrain from degrading the fishery resource” through culverts constructed on state-owned roads and highways because to do so deprived tribes of a moderate living from fishing.72 The federal government sought injunctive relief requiring Washington to replace or repair 817 state-owned culverts in treaty areas.73 The district court held for the plaintiffs and issued a permanent injunction in 2013.74
The Ninth Circuit affirmed,75 reasoning that maintaining fisheries that could feed the tribe was a central concern for tribal representatives in 1855 when granting land cessions.76 The Indigenous signatories “did not understand the Treaties to promise that they would have access to their usual and accustomed fishing places, but with a qualification that would allow the government to diminish or destroy the fish runs.”77 According to the panel, the purpose of the agreement required interpreting the promise to last “forever.”78 Culverts were not the primary reason for the salmon population’s decline, but the culverts’ role in leading to the deaths of an estimated several hundred thousand mature salmon in the treaty area — and the corresponding harm to the tribal members, who could no longer earn a living from fishing — was sufficient to show a treaty violation.79
The decision, which was affirmed by an equally divided Supreme Court in a per curiam opinion,80 had massive implications. Most importantly, the holding forced the State to take affirmative steps to ensure that tribes continue to enjoy the rights guaranteed in their treaty. It required the State to modify its culverts within seventeen years at a cost of hundreds of millions if not billions of dollars.81 Despite the State’s arguments that it would divert revenue that could be spent on other salmon recovery efforts,82 the Court affirmed that neither the federal government nor the states may violate treaty provisions interpreted as Indians would have understood them.
2. Recent Developments in Treaty-Based Litigation at the Supreme Court. — Several recent Supreme Court cases, spurred by the changed composition of the Court, reveal the power of the third canon in treaty-based litigation and offer lessons for future litigation.
(a) Indian Law in the Current Supreme Court. — Between 1986 and 2016, the Supreme Court decided seventy-two percent of Indian law cases against Native interests;83 however, it has increasingly ruled in tribes’ favor following Justice Gorsuch’s 2017 confirmation.84 The Justice’s previous post in the western Tenth Circuit ensured his exposure to Indian law, and his jurisprudence illustrates his enduring commitment to upholding its principles.85 Over the past several years, he joined with an otherwise liberal voting bloc of Justices Ginsburg, Breyer, Sotomayor, and Kagan to vindicate treaty rights through the Indian canons.86 As a result, the Court ruled in tribes’ favor in Washington State Department of Licensing v. Cougar Den, Inc.,87 Herrera v. Wyoming,88 and McGirt v. Oklahoma.89 Other federal courts may follow suit.
(b) Applications of the Canon to Climate Change Litigation. — Applying the Court’s understanding of the canon to these cases will be crucial for attorneys seeking to bring treaty-based climate change litigation. When citing the third canon, litigants should look to records of negotiations, analyze treaty text using Indigenous languages, and acknowledge Indigenous cultural practices to evaluate how tribal representatives understood a treaty’s terms at the time of signing.
First, in Cougar Den, the Court used the third canon90 to hold that a provision of an 1855 treaty between the United States and the Yakama Nation preempted the State’s $3.6 million fuel tax on a Yakama company’s importing fuel via public highway within the reservation.91 The treaty established the “right, in common with citizens of the United States, to travel upon all public highways.”92 Justice Breyer, writing for a plurality of the Court,93 referred to the historical record — especially treaty negotiations discussing Yakama members’ emphasis on the right to travel on public highways with goods for trade purposes without burdens — to discern the Indigenous meaning of this provision in 1855.94
In his concurrence,95 Justice Gorsuch elaborated on the Yakama peoples’ conception of the treaty.96 First, he underscored that the Tribe ceded ten million acres in exchange for promises, including travel, signifying its importance to tribal members.97 “[I]n common with” in the Yakama language would have indicated a lack of restrictions to tribal representatives.98 In addition to probing Yakama linguistic understandings, he showed that far-reaching travel and trade were essential to Yakamas’ way of life.99 He reasoned that they would not agree to a treaty unless it protected their preexisting access to the markets.100 Since there was no ambiguity in how Yakama signers viewed the treaty, their understanding was “binding” and sufficient to “resolve this case.”101
Second, courts should not void a treaty right when Indigenous signatories did not contemplate that future conditions would extinguish that right. In Herrera, the Court held that Wyoming’s admission to the Union and the establishment of the Bighorn National Forest did not abrogate the Crow Tribe’s 1868 treaty “right to hunt on the unoccupied lands of the United States.”102 Because Congress had not clearly stated that Wyoming’s admission to the Union extinguished the treaty right, the Tribe’s hunting right was intact.103 Writing for the majority, Justice Sotomayor turned to the treaty’s text and construed it as it would have been understood by Indians at the time.104 The meaning of “occupation” in 1868 was “[t]o hold in possession; to hold or keep for use” — where “use” implied “actual use, possession or cultivation by a particular person.”105 There was very little settlement of the Bighorn Forest in 1868, so the Crow Nation would not have thought of it as “occupied,” nor would they have anticipated that statehood would diminish that land.106 Since they agreed to the treaty’s terms with that understanding, subsequent occupation or statehood could not change them.
Third, courts must uphold a treaty right even where it significantly impacts the State. In McGirt, Justice Gorsuch’s majority opinion held that the Oklahoma land reserved for the Creek Nation in its 1866 treaty remains Indian country because Congress never diminished or disestablished it through a “clear expression of [its] intention” in its subsequent allotment statutes.107 The Court found no ambiguity in the language of later statutes, so it did not consider contemporary understanding of the congressional statutes or treatment of those lands.108 The State’s erroneous exercise of jurisdiction over criminal cases on these lands for over a hundred years did not authorize further unlawful exercise,109 as Native peoples would have never anticipated this condition at the time the treaty was signed. The possible repercussions of the ruling included recognizing that almost half of Oklahoma’s land was still Indian country and overturning more than a thousand criminal convictions.110 Still, this consequentialist argument was not sufficient for the Court to ignore the treaty’s guarantees.111
(c) Changes in the Court’s Composition. — Since these 5–4 opinions, the Court’s composition has shifted, calling into question the Court’s recent embrace of the third canon. Justice Ginsburg, who was in the majority in each of the aforementioned cases, passed away,112 and Justice Barrett joined the Court.113 However, Justice Barrett might follow Justice Gorsuch’s lead in using the canons. In her article Substantive Canons and Faithful Agency, Justice Barrett detailed the history of six well-known substantive canons, including “the Indian canon.”114 She described it as: “How the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction.”115 Her acknowledgment of the Indian canons’ ongoing application suggests she will be familiar with the third canon if treaty-based climate change litigation comes before the Court.116 She has expressed slight skepticism about the canons’ applications to statutes, but she has not questioned their continued use in treaty interpretation.117 This distinction raises concerns for tribes who have agreements with the federal government rather than ratified treaties, but it seems to suggest that the present Court may faithfully execute the third canon, at least for pre-1871 treaties.
C. Strategies for Treaty-Based Climate Change Litigation
In the past several years, tribes have begun to bring treaty-based litigation to combat climate change’s effects. They may improve their prospects by foregrounding tribes’ interpretations of treaty provisions at the time of signing. Promising avenues include suing federal agencies for federally managed infrastructure contributing to drying waterways; for failure to manage forest fires destroying treaty-guaranteed hunting, gathering, and fishing grounds; and suing federal and state agencies for permitting pipelines that interfere with the rights of nature.
1. Droughts. — Tribes can sue the federal government for changing water levels that harm their traditional fishing grounds. In the summer of 2021, the Klamath River Basin experienced an unprecedented drought that caused the suckerfish — the heart of the Klamath Tribes’ subsistence diet and creation story — to die in droves.118 Without an immediate increase in water levels, which are limited by a nearby federally managed dam, the suckerfish species likely will disappear within decades.119 This trajectory undermines the United States’ agreement with the Tribes, who in 1864 ceded twenty-two million acres to the United States in exchange for retaining 1.5 million acres120 on which they had “the exclusive right of taking fish in the streams and lakes, included in said reservation, and of gathering edible roots, seeds, and berries within its limits.”121 Their Chairman lamented: “I don’t think any of our leaders, when they signed the treaties, thought that we’d wind up in a place like this. We thought we’d have the fish forever.”122
To enforce their treaty right, the Klamath Tribes may sue the Federal Energy Regulatory Commission (FERC) for its dam management.123 They may seek injunctive relief requiring the removal of dams to protect the treaty’s right to fishing in this area in perpetuity.124 To strengthen their claims, the Klamath Tribes can cite Cougar Den for the proposition that the suckerfish is essential to the Tribes’ traditional lifeway and thus the treaty preserved their right to fishing.125 Herrera supports the argument that changing environmental conditions do not abrogate that right.126 And because there is clear and direct federal action damaging fish runs by maintaining the dams, the Culverts Case further bolsters the argument that treaty signers would not have understood the right to fish “with a qualification that would allow the government to diminish or destroy the fish runs.”127 The Culverts Case and McGirt also support the idea that even if dam removal is logistically difficult and costly for the federal government, such challenges would not be sufficient to defeat a treaty right.128 Although the Tribes’ treaty does not specify a water right, the treaty creates a duty to maintain enough water to support the Tribes’ fishing population per the Ninth Circuit’s opinion in United States v. Adair.129 With the assistance of the third canon, the Tribes’ lawsuit to remove the Klamath Dams may be among the first successful tribal suits to mitigate climate change’s impact on the surrounding ecosystem.130
2. Forest Fires. — As rising temperatures stoke forest fires, tribes can sue the U.S. government for failing to manage forest health. The federal government holds eighteen million acres of Indian forests in trust across twenty-four states.131 Timberlands make up almost half, if not more, of total trust lands.132 Woodlands are the principal source of income for many tribes, and they are critical to fish, wildlife, sustenance, medicines, fuel, shelters, transportation, and spiritual practice.133 The task of maintaining them to prevent destructive fires is part of the federal government’s responsibility to safeguard treaty lands.134 But its management was so insufficient that Congress passed a 1990 law mandating ongoing assessments of tribal forest lands to ensure compliance.135 Decades later, reports showed little progress toward preventing fires in Indian country.136 With climate change warming the American West and worsening wildfires, tribes have borne the brunt of these blazes, particularly in California, Oregon, and Washington.137 In response, in 2021, the Confederated Tribes of the Colville Reservation filed suit against the U.S. government, seeking monetary compensation for the wildfires that scorched 240,000 acres, “sterilized the soil[,] and created a moonscape.”138
The Colville tribes and others can strengthen their suit over forest-fire mismanagement by alleging not simply economic hardship from the government’s failures but also the federal government’s affirmative duty to improve these practices to protect hunting, fishing, and gathering grounds from further fires. Many treaties in Oregon granted the tribes “the privilege of hunting” and “gathering roots and berries” on unclaimed lands, which were mostly forest lands.139 These areas are especially susceptible to climate change–related fires. As a former resident of the Warm Springs Reservation and now acting Fire Chief for the Bureau of Indian Affairs (BIA) reflected: “We didn’t have that de-cades ago . . . . Fires just never burned that hot.”140 Per Herrera, these changed conditions should not infringe on the tribes’ rights because tribes did not anticipate these conditions at the time.141 Tribes can show that the United States’ rejection of the controlled burns practiced by Indigenous peoples for hundreds to thousands of years has resulted in a proliferation of highly combustible underbrush and, as a result, more intense fires; these fires have destroyed traditional food systems in violation of the treaty.142 The Culverts Case additionally suggests that even though the BIA’s mismanagement is a secondary cause of forests burning on treaty lands (relative to climate change), the agency must pay for the damage and take affirmative measures to mitigate future environmental degradation.143
3. Pipelines. — Tribes may bring suits that interpret treaty text using tribes’ understanding of their relationship to nonhuman relatives.144 Some tribes and tribal courts are already beginning to recognize the rivers’ rights against environmental degradation.145 U.S. courts have yet to establish the “rights of nature” — when an ecosystem has legal personhood and thus the right to defend itself in court against harm.146 Although other countries’ court systems have recognized rights of nature,147 attempts in the United States have faltered.148 U.S. courts have long rejected the legal personhood of ecosystems under the standing doctrine.149 But tribes may convince federal courts to acknowledge the rights of nature by showing how tribes understood the provisions of their treaties to recognize the personhood of those resources at the time of signing.150
As resistance against the Enbridge Line 3 oil pipeline ramped up in Minnesota in 2021, the White Earth Band of Ojibwe sued the Minnesota Department of Natural Resources Commissioners in tribal court in the “first case brought in a tribal court to enforce the rights of nature.”151 The Tribe asserted that the State’s issuance of a permit to use five billion gallons of public groundwater for Enbridge’s Line 3 pipeline project violated the Tribe’s rights recognized in its 1837, 1854, and 1855 treaties with the United States.152 The Tribe argued that the pipeline’s permitting violated the treaty rights of manoomin, wild rice that is the cultural center and subsistence staple of the Anishinaabe peoples.153 Climate change presents an existential threat to manoomin.154 The Tribe offered evidence of its original understandings about usufructuary property rights to the lands and waters being ceded and held in common among Chippewa Indians across Mississippi and Lake Superior, exclusive from the state and federal government.155 According to the Tribe, the water diverted for Line 3 was not the State’s to give because it belonged to manoomin.156 It is an open question whether a tribe can sue a state department official for violation of a treaty right in tribal court.157 But a federal court recently dismissed the State’s bid to end the case.158 This case’s outcome may bring hope to other tribes trying to recognize the rights of nonhuman relatives mentioned in treaties.
The White Earth Band of Ojibwe also may endeavor to bring this claim in federal court and bolster its chances for success by invoking the third canon. Since courts will consider Indigenous linguistic understandings of treaties, the Tribe might use testimony from language keepers of Anishinabemowin to demonstrate that manoomin’s relationship with the Tribe has existed for centuries.159 It can also use language to show manoomin was not simply an object but a relative to the Anishinaabe people with its own stories and history.160 Finally, it might point to manoomin’s primacy in the negotiations, in which tribal representatives endeavored to ensure that tribal members would always have enough water to thrive.161
D. Challenges to Using the Third Canon in Climate Change Litigation
This section responds to possible arguments against relying on the third canon, including that some treaties have qualified provisions that suggest rights to resources expire when the resources do, that there are cases where it may be more difficult to prove causation, and that the third canon may contradict the textual reading of a treaty.
1. Treaties with Qualified Provisions Affected by Climate Change. — Some treaties have terms with language like “until” and “so long as” that seem to imply that the relevant right lasts only as long as that resource does,162 but the third canon can protect even these seemingly qualified rights from changed climate conditions. For example, from Washington to Minnesota, dozens of treaties specified “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon.”163 But game may no longer live in tribes’ traditional hunting grounds because of inhospitable conditions caused by climate change.164 Tribes in this predicament may analogize to the Culverts Case litigation by showing that state or federal activities contributed to the decline. Defendants likely will counter that unlike the fishing rights in usual and accustomed places, this right expires when game disappears.165 And no case has decided what “game thereon” means for this climate change question and in the context of the Culverts Case, where the government cannot contribute to destroying or diminishing game.166
But by citing Justice Gorsuch’s concurrence in Cougar Den or the Ninth Circuit’s opinion in the Culverts Case, tribes could provide evidence that “so long as game may be found thereupon” was understood to mean “forever” by Indigenous signatories. For instance, that phrase appeared in the Fort Laramie Treaty of 1868 with the Očhéthi Šakówin, or Great Sioux Nation.167 The word meaning for “as long as” in Lakȟótiyapi, “toháŋhuŋniyaŋ,” denotes “forever, always, all the time, from time immemorial.”168 So, a tribe bringing suit under this treaty could show, along with other notes from the negotiations and oral histories, that Lakota treaty signers considered this provision to mean that they could hunt on these lands for all time — not conditionally. Tribes bringing suits can consult language speakers to see if “so long as” has different understandings in their Indigenous languages and worldviews. Even if the translation of “so long as” were ambiguous, courts should resolve ambiguities in favor of tribes under the second canon.169 Tribes also might show that the treaty signers could not imagine a world without a specific right or resource because it was so central to lifeways for hundreds to thousands of years before climate change. For instance, it was persuasive to Justice Gorsuch in Cougar Den that travel along highways to facilitate trade was essential to Yakama lifeways at that time and that they would never sign this right away.170 The case for the centrality of hunting to lifeways will likely be easier to prove because it was crucial to feeding the Tribe. Thus, tribes likely will prevail despite the uncertainty around this language.
2. The Harder Cases. — The case studies involving man-made, government-managed culverts, pipelines, and dams that debilitate fish runs demonstrate clear causation to those species’ decline. But many tribes also suffer from climate change–related conditions, such as rising sea levels,171 where the state and federal governments’ roles are less concrete.172 These cases are more challenging than the Culverts Case. However, they suggest that as long as the government-related decision was an “important cause of the decline” of a species, even if it was not a primary cause, the United States must take affirmative actions to remediate treaty-related habitats.173 Still, courts may invoke Judge O’Scannlain’s dissent from the denial of rehearing en banc in the Culverts Case, which was deeply concerned about turning federal courts into environmental regulators in treaty cases — even where a physical government barrier had a demonstrable connection to the decline of a species.174
3. Textualist Rebuttals to the Third Canon’s Use. — Opponents may assert that using the third canon to prioritize Indigenous linguistic understandings of treaty provisions is incompatible with textualism.175 In Cougar Den, Justice Kavanaugh, a self-professed textualist,176 argued against well-established precedent, contending that the plurality and concurrence did not adhere to the treaty’s “textual meaning” by considering what the treaty text would mean to signatory tribes.177 This approach to interpreting Indian law treats “Indians and Indian tribes as passive recipients of federal law and policy, with little or no input in the process.”178 Because of this perception, this textualism uses only the semantic context of non-Indians.179
But as Justice Gorsuch’s concurrence explains, textualism should highlight not only non-Indigenous perspectives: reading a treaty provision just to “some modern ears” would favor “the drafter who enjoys the power of the pen.”180 Native nations’ representatives often negotiated in second languages and could not review the final treaties transcribed in English.181 They had to trust interpreters’ translations and promises.182 As one of the oldest substantive canons favored by textualists,183 the third canon recognizes that these supreme laws of the land were more than simply congressional dictates — they were agreements between nations in which peoples without the pen’s original understanding of terms mattered, as well.184
Native nations have been at the forefront of fighting climate change. Now, tribes have brought this battle to the courtroom. Building on the Culverts Case and recent Supreme Court readings of treaty rights using the third canon, tribes can pursue litigation to reduce federal and state governments’ roles in environmental degradation related to climate change. Tribes can weild the third canon creatively to argue for extending the rights of nature to resources that tribes viewed as relatives when drafting their treaties. Claims grounded in the third canon can help uphold rights that may disappear with the changing climate and may be particularly strong in cases where the federal government has assumed management over resources. Such strategies — combined with efforts outside the courtroom that strengthen tribal sovereignty, restore Indigenous stewardship, and prioritize thousands of years of land management knowledge — will help ensure that the rivers, game, and fish continue to run as long as the sun shines.