Indian Treaties and the Survival of the Great Lakes

Abstract

Federal and state statutory and regulatory protections do not appear to be the answer to preventing the calamity ongoing in the waters of the Great Lakes. To fill in the gap, environmental advocates and scholars devote much of their attentions to the public trust doctrine, first articulated in this context by Joseph Sax. There is little attention devoted to the insights of Indian tribes or the potential legal benefits of invoking Indian treaty rights. The Supreme Court has long affirmed the supremacy of Indian treaty provisions and, while the Court's interpretation of some treaties has been cramped at best, the Great Lakes and Pacific Northwest treaties have been interpreted in a manner that suggests there is room to provide for protection of major water bodies.

We propose to incorporate Indian treaty jurisprudence into the strategy for saving the Great Lakes. The interests of the parties tend to be the same - the preservation of the resource. Indian treaties negotiated by Indian peoples that relied on water as a means of survival - economic, cultural, and political - provide a potential (and as yet untested) legal tool for the preservation of major water bodies such as the Great Lakes.

Keywords: Indian, tribe, treaties, environmental law, Great Lakes, water, conservation, public trust, critical race theory