PREAMBLE

The National Cooperative Highway Research Program (NCHRP) plans to award a contract for a study and report. Legal research reports sponsored by this project are published in the NCHRP's Legal Research Digest (LRD) series. Publications are made available to some libraries and to approximately 4,000 transportation lawyers and officials through the TRB network.

BACKGROUND

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.

OBJECTIVE

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.

RESEARCH IMPLEMENTATION

This research will be conducted in four tasks pursuant to a firm fixed price agreement.

The tasks will be as follows:

Task 1. Research plan and detailed report outline. The consultant will conduct background research and collect relevant material. Based on the initial but complete review of the source material, consultant will propose a detailed report outline. The outline should be about 8 to12 pages, include a proposed survey if one is to be used, and contain sufficient detail to inform the NCHRP project panel of what a 75- to 100-page report will contain. This outline should also contain the estimated pagination for each proposed section and/or subsection. This material will be submitted to NCHRP for consideration and approval.

Task 2. After approval of the work plan, the consultant should conduct additional research, and case and statutory/regulatory analysis.

Task 3. Draft report in accordance with the approved work plan (including modifications required by TRB).

Task 4. Revise report as necessary. The consultant should estimate that two revisions will be necessary. One revision may be required after review by the NCHRP staff and members of a select subcommittee. Additional revisions may be required after the full committee has reviewed the report.

STATUS: Research is Completed. Will be published as NCHRP Legal Research Digest 94.