Memorandum of understanding for treaty rights in the works

Members of the Lummi Nation exercise their treaty rights at Xwe’chi’eXen, also known as Cherry Point, in Washington. Photo by Lummi Nation

Federal agencies will be signing a memorandum of understanding to address tribal treaty rights, top Cabinet officials said.

The Interior Department and the Environmental Protection Agency are among those joining the agreement. It was announced at the White House Tribal Nations Conference on Monday.

"In the coming days, we'll be formalizing a memorandum of understanding among agencies to ensure that treaty rights are part of agency decision-making with regard to natural resources," Interior Secretary Sally Jewell said to applause from tribal leaders during her opening remarks to the conference.

The effort grew out of an action that the EPA took earlier this year. The agency developed guidance to address treaty rights throughout its entire decision-making process, Administrator Gina McCarthy during a discussion later during the conference.

"Tribal treaty rights are the law of the land," McCarthy said. The guidance was the first of its kind for any federal agency.

Tribes have long pushed for recognition, respect and enforcement of their treaties, which are legally binding on the United States. But federal agencies, Congress, the court systems and state governments have not always been receptive.

"The treaties ... are all our rights because there's two parties to the treaties, not just the tribes," Mic Isham, the chairman of the Lac Courte Oreilles Band of Lake Superior Ojibwe from Wisconsin, said during another discussion at the conference. "The United States of America signed those treaties as well so they're all Americans' rights."

There have been some signs of progress recently. In May, the U.S. Army Corps of Engineers halted the permitting process for a controversial coal export terminal in Washington due to the negative impacts on tribal treaty rights.

And with attention still focused on the #NoDAPL movement, the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe Yankton Sioux Tribe are citing treaties in a bid to block the Dakota Access Pipeline, another controversial infrastructure project.

In addition to Interior and EPA, the Department of Agriculture, the Department of Commerce, the Department of Justice and the Advisory Council on Historic Preservation are signing the memorandum, McCarthy said. She also hopes other agencies will join.

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