Legal Problems Arising out of Highway Programs. Topic 26-01. Effects of Indian Treaties on Development and Operation of Transportation Facilities

Recently the State of Washington was required to change the design of the culverts under its roads to accommodate the passage of salmon. The requirement was based on interpretation of treaties with Indian tribes from the 1850s that predated Washington’s admission to the United States as a state. The treaties pertained to fishing rights. See United States v. Washington, 20 F. Supp. 2d 828, 889 (W.D. Wash. 2007), aff’d., 853 F.3d 946 (9th Cir. 2017), aff’d. by an equally divided Court, 138 S. Ct. 1832 (2018). The fishing rights protected by these treaties are now being considered by local and state planning and regulatory bodies in their denial of permission for construction of ports and railroads to serve the fossil fuel industry. See Blumm and Litwak, Democratizing Treaty Fishing Rights: Denying Fossil-Fuel Exports in the Pacific Northwest, 30 Colo. Nat. Resources, Energy & Envtl. L. Rev. 1-33 (2019). In 2020 the United States Supreme Court decided a case that reinforced the concept that Indian treaties adopted when states were territories and never abrogated by Congress were still in effect. In McGirt v. Oklahoma, 591 U.S. ____ (2020), the Court held that a Native American accused of crimes that occurred inside the boundaries of an Indian reservation established before Oklahoma was a state could not be tried in state court. This decision further enhances the need for states to examine whether treaties established before statehood are still in effect. The objective of this research is to produce a legal research digest that addresses the following questions: (1) How do state departments of transportation (DOTs) perform due diligence to research the existence of Indian treaties that may still be in force that could affect development and operation of transportation facilities? The treaties that would be the subject of this research would not be limited to fishing rights. (2) How would the treaties that may still be in force from many years ago be related to the federally recognized Indian tribes of today? (3) If there are such treaties, how could they be interpreted to affect transportation facilities? (4) What would the administrative mechanism be (Tribal Consultation, litigation, etc.) for resolution of treaty rights against developers and operators of transportation facilities? Applicable case law and statutes relating to enforcement of Indian treaty rights should be included in the final deliverable. A survey of state DOTs and other transportation authorities would be necessary to identify existing practices and experiences.


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  • Status: Proposed
  • Funding: $100000
  • Contract Numbers:

    Project 20-06, Topic 26-01

  • Sponsor Organizations:

    National Cooperative Highway Research Program

    Transportation Research Board
    500 Fifth Street, NW
    Washington, DC  United States  20001

    American Association of State Highway and Transportation Officials (AASHTO)

    444 North Capitol Street, NW
    Washington, DC  United States  20001

    Federal Highway Administration

    1200 New Jersey Avenue, SE
    Washington, DC  United States  20590
  • Project Managers:

    Chisholm-Smith, Gwen

  • Start Date: 20211222
  • Expected Completion Date: 0
  • Actual Completion Date: 0

Subject/Index Terms

Filing Info

  • Accession Number: 01787235
  • Record Type: Research project
  • Source Agency: Transportation Research Board
  • Contract Numbers: Project 20-06, Topic 26-01
  • Files: TRB, RIP
  • Created Date: Nov 1 2021 3:23PM