The Inevitable Rise of the Climate Crisis
For millions across the globe, the pervasive effects of climate change have become an ever-increasing presence. Due to drastic temperature changes and glacial melt, sea levels have risen, causing climate disasters to breach human communities.1 In the United States, regions have experienced flooding, storm surge, and hurricanes, devastating vulnerable neighborhoods.2 While one-time incidents may allow individuals to return to their homes, “an inability to recover and rebuild following a disaster will turn temporary displacement into permanent moves.”3 Among those impacted by climate change, Native American tribes have suffered from adverse effects on their homes, land, and resources.4 In particular, tribes along the nation’s Alaskan and continental shorelines suffer from storm surge and coastal erosion.5 Due to “increased flooding and inundation in the Pacific,” tribes have begun to question the long-term viability of their reservations. 6 As the threat of displacement looms, tribes must prepare for relocation while parting from a way of life connected to the natural world and their heritage.7 This Paper addresses climate effects on the Quinault Indian Nation and the labyrinth of legal, 1 See Eli Keene, Resources for Relocation: In Search of a Coherent Federal Policy on Resettling Climate-Vulnerable Communities, 48 Tex. Env’t L. J. 119, 120 (2018). 2 See Hilary Whiteman, The World Has Just Experienced Its Hottest Decade, CNN Climate (Mar. 19, 2025, 2:50 AM), https://www.cnn.com/2025/03/19/climate/wmo-state-of-climate-report-2024-intl-hnk/index.html. 3 Change Will Drive Domestic Migration Across the United States, New Am., https://www.newamerica.org/futureland-housing/reports/climate-migrations-impact-on-housing-security/climate-change-will-drive-domestic-migrationacross-the-united-states/ (last visited Apr. 19, 2025); Keene, supra note 1, at 122. 4 See Kirsten D. Gerbatsch, Treaty-Based Climate Change Claims: Litigation Pathways in the Face of Cultural Devastation, 45 Pub. Land & Res. L. Rev. 155, 156 (2022). 5 See Eli Keene, Lessons from Relocations Past: Climate Change, Tribes, and the Need for Pragmatism in Community Relocation Planning, 42 Am. Indian L. Rev. 259, 259 (2017). 6 Keene, supra note 1, at 121. 7 See Rebecca Tsosie, Indigenous Sustainability and Resilience to Climate Extremes: Traditional Knowledge and the Systems of Survival, 51 Conn. L. Rev. 1009, 1012–13 (2019). 2 factual, and financial complications surrounding their transition to higher ground. The Quinault Indian Nation: A Coastal People Since time immemorial, the Quinault Indian Nation has “lived off the land, the ocean, [and] river ecosystems.”8 Tribal members historically constructed long houses for shelter and traded resources to bolster their economy, all the while maintaining a relationship with nature.9 Based on these ties, the Quinault seek to “[m]aintain . . . its lands as a social, cultural, political, and economic unit for the continuing benefit and prosperity of [its] members.”10 In 1856, the United States signed the Treaty of Olympia with the Quinault, requiring the tribe to settle on reservation land near Washington’s coast and cede the rest of its territory.11 While the Quinault have acted to preserve a cohesive community, climate change has hampered such efforts. The village Taholah, which lies “at the mouth of the Quinault river” near the Pacific Ocean and the Cascadia Subduction Zone, suffers from storm surge, flooding, and the threat of tsunamis. 12 Taholah’s precarious coastal location has hindered the reservation’s sustainability.13 The 8 Mark Trahant & Stewart Huntington, ‘We Are Going to Lead the World,’ICT (May 9, 2024), https://ictnews.org/news/-we-are-going-to-lead-the-world- (quoting Tyson Johnston, Quinault Tribal Council). 9 See Robinson, supra note Error! Bookmark not defined., at 2; Corey Griffis, At the End of the Highway, At the Edge of the Sea, WWU Undergraduate Acad. J., https://occamsrazorwwu.org/new-page-66 (last visited Apr. 19, 2025). 10 Environmental Protection, Quinault Indian Nation, https://www.quinaultindiannation.com/181/EnvironmentalProtection (last visited Apr. 19, 2025). 11 See Treaty of Olympia, Quinault-U.S., Jan. 6, 1856. 12 Keene, supra note 5, at 266. See Griffis, supra note 9. 13 See Press Release, Biden-Harris Administration Makes $135 Million Commitment to Support Relocation of Tribal Communities Affected by Climate Change, Dep’t of the Interior (Nov. 30, 2022), https://www.doi.gov/pressreleases/biden-harris-administration-makes-135-million-commitment-support-relocationtribal. 3 space between Quinault homes and the ocean has dwindled so significantly that the Army Corps of Engineers needed to construct a 2,000-foot seawall.14 In 2014, the Quinault declared a state of emergency after a storm surge breached the seawall, forcing the Army Corps to “rais[e] the seawall by about 4 feet.”15 By this point, the Quinault worry whether the seawall can withstand king tides and keep their homes safe.16 Moreover, rising temperatures and sea levels have altered ecosystem patterns, brewed ocean acidification, and deteriorated fish populations, thus exacerbating fears about climate change.17 In response to large-scale climate impacts, the Quinault made a monumental decision: move Taholah’s Lower Village to higher ground. Despite the tribe’s connections to the area, the Lower Village “has been flooded and is threatened by other major climate change-related impacts to the point that their homes and offices must be moved upland to a safer area.”18 As a result, the Quinault have spent years planning to relocate “hundreds of residents and civic buildings” to the tribe’s Upper Village.19 In 2013, the Quinault began assembling a master plan 14 See Jessica A. Knoblauch, Climate Change Forces Quinault Tribe to Seek Higher Ground, EarthJustice (Mar. 12, 2018), https://earthjustice.org/article/climate-change-forces-the-quinault-tribe-to-seek-higher-ground. 15 Quinault Indian Nation and Taholah Relocation Highlighted by AP, Kxro News Radio (July 16, 2024, 8:16 AM), https://www.kxro.com/quinault-indian-nation-and-taholah-relocation-highlighted-by-ap/. See Knoblauch, supra note 14. 16 See John Ryan, Quinault Indian Nation Hits Milestone in Effort to Move Village Uphill to Safety, Nat’l Pub. Radio (Feb. 12, 2024, 5:18 PM), https://www.npr.org/2024/02/12/1230987914/quinault-indian-nation-hitsmilestone-in-effort-to-move-village-uphill-to-safety. 17 See Environmental Protection, supra note 10; Quinault Indian Nation Plans for Village Relocation, U.S. Climate Resilience Toolkit (2015), https://toolkit.climate.gov/case-study/quinault-indian-nation-plans-village-relocation; Trahant & Huntington, supra note 8. 18 Steve Robinson, Quinault Indian Nation: Living on the Edge, The Evergreen State Coll., https://www.evergreen.edu/native-cases/case-study/quinault-indian-nation-living-on-the-edge (last visited Apr. 19, 2025). 19 Quinault Indian Nation and Taholah Relocation Highlighted by AP, supra note 15. See Quinault Indian Nation Plans for Relocation, supra note 17. 4 using a $700,000 grant supplied by the Department of Health and Human Services.20 While the Quinault have made headway in relocating the Lower Village, substantial resources and funding will be essential to ensure a complete move.21 Given the poverty burdening tribal members and the conflict between funding relocation while preserving the Lower Village, the Quinault cannot afford to relocate on their own.22 Although the federal government originally promised the Quinault funding, it has done a poor job assisting the tribe.23 Any funding supplied is a mere “patchwork of federal and state grants,” which fails to satisfy the “estimated more than $400 million needed” for relocation.24 Moreover, by freezing federal funds, the Trump administration has placed the Quinault’s relocation plan in jeopardy.25 Many regard the current administration’s actions as violations of the government’s trust duties to tribes.26 Several tribes have asserted that “the federal government has a fundamental obligation to fulfill its treaty and trust responsibilities to Tribal Nations” based on tribes’ unique 20 See Jodi Helmer, As the Ocean Encroaches, This Washington State Tribe is Building Its Next Chapter, Nat. Res. Def. Council (Mar. 30, 2020), https://www.nrdc.org/stories/ocean-encroaches-washington-state-tribebuilding-its-next-chapter. 21 See Griffis, supra note 9. 22 See Quinault Reservation, Census Rep. (2023), https://censusreporter.org/profiles/25000US3040-quinaultreservation/. 23 See Biden-Harris Administration Makes $135 Million Commitment to Support Relocation of Tribal Communities Affected by Climate Change, supra note 13. 24 Quinault Indian Nation and Taholah Relocation Highlighted by AP, supra note 15. See Allison Frost, Quinault Tribal Village on Washington Coast Will Relocate Due to Flooding, Or. Pub. Broad. (May 20, 2024), https://www.opb.org/article/2024/05/20/quinalt-reservatin-washington-flooding/. 25 See Mary A. Pember, Tribal Funding Caught in Crossfire from Trump Administration, Minn. Pub. Radio (Feb. 18, 2025, 12:30 PM), https://www.mprnews.org/story/2025/02/18/tribal-funding-caught-in-crossfire-from-trumpadministration. 26 See Graham L. Brewer, Tribal Nations Are Concerned That Trump’s Cuts Have the Potential to Violate Trust Responsibilities, Associated Press News (Mar. 6, 2025), https://apnews.com/article/trump-tribal-nations-bureau-ofindian-affairs-f546838f7d480c99cdbdf8ab0f3b5859. 5 “legal and political relationship with the United States.”27 These trust obligations have historic, treaty-based roots that require the government to protect tribal resources and livelihoods.28 Therefore, this Paper argues that to acquire the needed funds for relocation, the Quinault should pursue breach of trust litigation against the federal government to collect damages. The Treaty Legal Framework Since early colonial settlement, the relationship between white Americans and Indian tribes has been characterized by disorder, hierarchy, and conflict over possession. Eager to develop their new nation, Americans pursued westward expansion mercilessly, using religious and supremacist ideologies to obtain land and resources.29 Among the government’s many devices for claiming land, treaty-making with tribes proved particularly successful given their deceptive formality, party benefits, and communication barriers that arose during negotiation.30 On the surface, treaties consisted of an exchange, where the government would agree to protect tribes and respect their sovereignty to receive land and peaceful relations in return.31 Yet, the United States entered into such treaties to effectuate “a federal policy of forced removal and isolation of tribes” to keep tribes and their culture “physically and geographically separate from 27 Status of Tribal Nations as Political Entities in the Implementation of the President’s New Executive Orders, Am. Indian Higher Educ. Consortium et al. (Feb. 2, 2025), https://cdn.sanity.io/files/raa5sn1v/production/216c469a64b8a03d98ec860e3e2ccc71ee5c348e.pdf. 28 See Keene, supra note 5, at 266. 29 See Audrey Glendenning et al., (Some) Land Back . . . Sort Of: The Transfer of Federal Public Lands to Indian Tribes Since 1970, 63 Nat. Res. J. 200, 206 (2023); Logan Cooper, Note, Rising Tides, Rising Obligations: Enforcing Tribal Trust Responsibility for Climate Change Mitigation, 9 Ariz. J. Env’t L. & Pol’y 62, 66 (2019). 30 See Hope Babcock, Here Today, Gone Tomorrow -- Is Global Climate Change Another White Man’s Trick to Get Indian Land? The Role of Treaties in Protecting Tribes As They Adapt to Climate Change, 2017 Mich. State L. Rev. 371, 392 (2017). 31 See Babcock, supra note 30, at 392; Gerald Torres, Decolonization: Treaties, Resource Use, and Environmental Conservation, 91 U. Colo. L. Rev. 709, 719 (2020). 6 non-Indian society.”32 As a result, many treaties reflected an unequal exercise of bargaining power, and “[t]he solemn promises in these treaties were often broken” to tribes’ detriment.33 Some of the most infamous treaties unfolded between the United States and Pacific Northwest tribes. 34 In 1854, the Commissioner of Indian Affairs sent a letter to Isaac Stevens, the Governor of the Washington Territory, to form treaties with every tribe in the area for the purpose of “extinguish[ing] Indian title to all the lands in the Territory, except for those lands which the Indians would require.”35 While Stevens claimed his treaties would result in “the gradual civilization of the Indians, and their ultimate incorporation with the people of the Territory,” the underlying plan to “concentrate [the Washington tribes] on a limited number of reservations” remained in full force.36 Through the Stevens Treaties, “tribes in the Pacific Northwest ceded approximately sixty-four million acres of land to the United States.”37 On behalf of the Quinault, Chief Taholah signed the Treaty of Olympia with Governor Stevens, which deprived the tribe of land despite concerns about accessing food at the mouth of the Quinault River.38 While Article I of the Treaty discusses this cession of land, Articles II and III list rights that the Quinault retained.39 Article III contains the following rights: (1) “taking fish at all usual and accustomed grounds and stations” and “erecting temporary houses for the purpose of curing 32 Babcock, supra note 30, at 395–96. 33 Id. at 394–95. 34 See Torres, supra note 31, at 718. 35 Robert B. Lane & Barbara Lane, The Treaty Council That Failed, 9 Am. Indian J. 2, 3 (1986). 36 Kent Richards, The Stevens Treaties of 1854–1855, 106 Or. Hist. Q. 342, 346 (2005). 37 Torres, supra note 31, at 720. 38 See John Ryan, How a Northwest Tribe is Escaping a Rising Ocean, Nat’l Pub. Radio (Feb. 19, 2024); Lane & Lane, supra note 35, at 6. 39 See Babcock, supra note 30, at 398; Gerbatsch, supra note 4, at 182. 7 the same”; (2) “hunting”; (3) “gathering roots and berries”; and (4) “pasturing their horses on all open and unclaimed lands.”40 Article II indicates the Quinault’s right to land: “[t]here shall . . . be reserved, for the use and occupation of the tribes and bands aforesaid, a tract or tracts of land sufficient for their wants within the Territory of Washington . . . and set apart for their exclusive use.”41 Importantly, the Treaty reserved these rights to the tribe as “recognized aboriginal rights” predating the Treaty that “remain unless explicitly abrogated by Congress.”42 The Trust Legal Framework The Indian trust doctrine has profoundly influenced American jurisprudence. 43 A judgemade concept, the doctrine derives from the “Marshall Trilogy,” which consists of Johnson v. M’Intosh, 44 Cherokee Nation v. Georgia, 45 and Worcester v. Georgia. 46 Despite the white supremacist tone in Justice Marshall’s opinions, the discussions on Indian trust doctrine from Cherokee Nation and Worcester have spearheaded decades of case law unpacking the federal government’s duties as trustee.47 As the doctrine has disseminated through the courts, tribes have attempted to use it as a basis for claims against the federal government.48 Among the Supreme Court’s jurisprudence on breach of trust claims, United States v. 40 Treaty of Olympia, Quinault-U.S., art. III, Jan. 6, 1856. 41 Treaty of Olympia, Quinault-U.S., art. II, Jan. 6, 1856. 42 Gerbatsch, supra note 4, at 173. 43 See Keene, supra note 1, at 134. 44 21 U.S. 543 (1823). 45 30 U.S. 1 (1831). 46 31 U.S. 515 (1832). 47 See Gerbatsch, supra note 4, at 166. 48 See id. at 158. 8 Mitchell (Mitchell I) 49 and United States v. Mitchell (Mitchell II) 50 left their mark. In Mitchell I, the Quinault and other allottees sued to recover damages from the federal government for mismanaging timber resources.51 They argued this failure to properly handle timber held in trust by the United States “breached a fiduciary duty owed to them.”52 In reviewing the Tucker Act and Indian Tucker Act, the Court found jurisdiction existed, but neither statute “confer[red] a substantive right against the United States to recover money damages.”53 On the merits, the Court found the General Allotment Act “created only a limited trust relationship” that did not obligate the government to manage timber resources.54 Consequently, the General Allotment Act lacked any substantive right to damages on which the parties could sue the federal government.55 In Mitchell II, the Court stated that both the Tucker Act and Indian Tucker Act waive the federal government’s sovereign immunity for “any claim against the United States founded . . . upon any express or implied contract with the United States.”56 In the context of breach of trust, a claim rooted in contract law, the Court found government sovereign immunity waived. 57 Upon reviewing the merits, the Court discussed the need to locate a right to damages in federal law and revisited precedent, which ruled a breach of trust claimant seeking damages must show the legal 49 445 U.S. 535 (1980). 50 463 U.S. 206 (1983). 51 See 445 U.S. at 537. 52 Id. 53 Id. at 538–40. 54 Id. at 542. 55 See id. at 546. 56 Tucker Act, 28 U.S.C. § 1491(a)(1) (1887). See Mitchell II, 463 U.S. at 212. 57 See Mitchell II, 463 U.S. at 215–16. 9 source “can fairly be interpreted as mandating compensation by the Federal Government for the damages sustained.”58 The Court reasoned that language from statutes and regulations “directly supports the existence of a fiduciary relationship” and illustrates the government’s “elaborate control over forests and property belonging to Indians.”59 Based on this analysis, the Court concluded the parties could assert successful breach of trust claims against the United States.60 Through the Mitchell decisions, the Supreme Court distinguished “between a bare trust and an enforceable, compensable fiduciary duty,” a distinction that has posed a barrier to breach of trust claims.61 Although Mitchell II provides a more favorable ruling for tribes,62 its analysis has a limited application to breach of trust claims for damages. As a whole, the Mitchell decisions provide a foundation for breach of trust law but only apply to specific circumstances that cannot fully capture the federal government’s trust duties towards the Quinault. Breach of Contract: The Solution for Quinault Relocation To effectively relocate and preserve their treaty rights, the Quinault should file breach of trust claims against the federal government and argue (a) the Treaty of Olympia reserves express and implied treaty rights, which the government must uphold as trustee, and (b) by failing to financially support relocation, the government has breached its trust duties to the tribe. While breach of trust claims may appear untenable given the Mitchell cases, the Supreme Court 58 Id. at 217 (quoting United States v. Testan, 424 U.S. 392, 400 (1976)). 59 Id. at 224–25. 60 See id. at 226. 61 Gerbatsch, supra note 4, at 169. 62 See Michael Rov, Indians May Sue for Breach of Federal Trust Relationship: United States v. Mitchell, 26 B.C. L. Rev. 809, 838 (1985). 10 confined its analysis in those cases to statutes and regulations.63 In fact, the Court never mentions the word “treaty.”64 To hold every claimant to the rigid standards imposed for identifying trust duties and the right to sue for damages in statutes and regulations extends the Mitchell rulings beyond their scope and degrades the use of treaties as effective litigation tools.65 In leaving treaties as the basis for a breach of trust claim unaddressed, the Mitchell decisions pose no barrier to the Quinault seeking damages from the federal government. I argue the Quinault can use contract law to show the United States owes the tribe damages for breaching its trust responsibility and jeopardizing treaty rights under the Treaty of Olympia. The Treaty of Olympia: Put More Simply, An Express Contract When Governor Stevens and Chief Taholah signed the Treaty of Olympia, they entered into a binding agreement.66 In exchange for granting away land, Governor Stevens offered the Quinault a reservation of rights and the promise of a permanent homeland that would become the Quinault Reservation.67 This offer and acceptance dynamic illustrates that the Treaty of Olympia constitutes a “contract[] between sovereigns.”68 The recognition of treaties as contracts traces as far back as Cherokee Nation, where Justice Thompson explained that Indian tribes “enjoyed a contractual relationship with the United States . . . which must serve as their protector.”69 63 See Mitchell I, 445 U.S. 535, 541–44 (1980); Mitchell II, 463 U.S. 206, 218 (1983). 64 See Lozano v. Montoya Alvarez, 572 U.S. 1, 12 (2014) (citing Foster v. Neilson, 27 U.S. 253, 254 (1829)). 65 See Gerbatsch, supra note 4, at 191–92. 66 See Treaty of Olympia, Quinault-US, art. XIII, Jan. 6, 1856. 67 See Rov, supra note 62, at 821. 68 Gerbatsch, supra note 4, at 172. See Washington v. Washington State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658, 675 (1979). 69 Scott W. Stern, Rebuilding Trust: Climate Change, Indian Communities, and a Right to Resettlement, 47 Ecology L. Q. 179, 215 (2020) (citing Cherokee Nation v. Georgia, 30 U.S. 1, 39–40 (1831) (Thompson, J., dissenting)). 11 Given the unique relationship between tribes and the United States, treaties like the Treaty of Olympia embody a special type of contract, where the federal government is beholden to fiduciary obligations that subject its actions to a stricter standard of review.70 The fact that courts regard treaties as “negotiated contracts of a high order” does not, however, detract from the undeniable truth that treaties are contracts.71 Through treaty-making, tribes and the United States engage in a “formal exchange of obligations” --i.e., offering protection of resources versus offering territory for settlement--, and “each party is required to fulfill its end of the bargain.”72 The inextricable connection between treaties and contracts opens a door for the Quinault to pursue future breach of trust litigation. The Quinault can prove jurisdiction exists under both the Tucker Act and Indian Tucker Act, even if the Treaty of Olympia is construed as a contract.73 According to Mitchell II, “[t]he Court of Claims’ jurisdiction over contract claims against the government has long been recognized, and government liability in contract is viewed as perhaps ‘the widest and most unequivocal waiver of federal immunity from suit.’”74 Once the Quinault satisfy jurisdiction, they must show the Treaty of Olympia is a contract making damages available to them. 75 For relocation, presenting a contract argument especially benefits the 70 See Seminole Nation v. United States, 316 U.S. 286, 296–97 (1942). 71 Elizabeth A. Kronk Warner, Everything Old Is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change-Threatened Resources, 94 Neb. L. Rev. 916, 932 (2016). See Noelia Gravotta, Note, A Great Nation Keeping Its Word: The Role of Tribal Treaty Rights in Climate Change Litigation, 29 N.Y.U. Env’t L. J. 118, 133 n.59 (2021). 72 Stephen L. Pevar, The Federal-Tribal Trust Relationship: Its Origin, Nature, and Scope, CA Water Plan Update 1, 2 (2009). See Daniel I.S.J. Rey-Bear & Matthew L.M. Fletcher, ‘We Need Protection from Our Protectors’: The Nature, Issues, and Future of the Federal Trust Responsibility to Indians, 6 Mich. J. Env’t & Admin. L. 397, 402 (2017). 73 See Tucker Act, 28 U.S.C. § 1491(a)(1) (1887); Indian Tucker Act, 28 U.S.C. § 1505 (1949). 74 Mitchell II, 463 U.S. 206, 215 (1983) (quoting Remedies Against the United States and Its Officials, 70 Harv. L. Rev. 827, 876 (1957)). 75 See Ransom v. United States, 900 F.2d 242, 244 (Fed. Cir. 1990). 12 Quinault given that courts can only award damages, as opposed to equitable relief.76 The Quinault’s ability to sue the federal government for a breach of trust treated like a breach of contract allows the Court of Claims and Supreme Court to consult common contract principles and modes of interpretation to analyze the Treaty of Olympia’s terms. For an express contract like the Treaty of Olympia, “federal common law of contract” controls.77 The next section explores rules for contract interpretation that I argue should be invoked to show the federal government bears trust duties under the Treaty of Olympia that have been breached. Treaty Interpretation and the Parol Evidence Rule Out of the foundational rules for contract law, courts should use the Parol Evidence Rule to review breach of trust claims grounded in a treaty. This rule precludes parties from admitting evidence of agreements external to an integrated contract that would change or refute its language.78 As a result, the court must develop its legal interpretation largely based on content within the four corners of the contract.79 In most instances, “[a] court will refuse to use evidence of the parties’ prior negotiations in order to interpret a written contract unless the writing is (1) incomplete, (2) ambiguous, or (3) the product of fraud, mistake, or a similar bargaining defect.”80 Often, ambiguity within a contract derives from the existence of vague, confusing language, or silence in the contract on a particular term.81 I propose that to understand the Treaty of Olympia 76 See Remedies Against the United States and Its Officials, 70 Harv. L. Rev. 827, 886 (1957). 77 Id. at 884. 78 See 11 Williston on Conts. § 33:1 (4th ed. 2024). 79 See Eric A. Posner, The Parol Evidence Rule, The Plain Meaning Rule, and the Principles of Contractual Interpretation, 146 U. Pa. L. Rev. 533, 534 (1998). 80 Posner, supra note 79, at 534 (alteration in original). 81 See Delaware & Hudson Canal Co. v. Pennsylvania Coal Co., 75 U.S. 276, 290 (1868); Helen Hadjiyannakis, The Parol Evidence Rule and Implied Terms: The Sounds of Silence, 54 Fordham L. Rev. 35, 38 (1985). 13 and determine whether a breach of trust occurred, courts should defer to the ambiguity exception. Under the ambiguity exception, if a contract “is reasonably susceptible to two meanings,” then “parol evidence is admissible to show the parties’ true intent and the actual meaning” behind the contract.82 Courts must gauge whether extrinsic evidence “show[s] that the parties meant by their (ambiguous) language something different from what they (apparently) said” and should be considered alongside the contract.83 To interpret a contract in a way that reflects parties’ intent, “the courts generally seek to place themselves in the position of the parties at the time they entered the contract, and consider extrinsic evidence . . . of the circumstances surrounding the making of the contract.”84 While the degree to which courts review extrinsic evidence hinges on their hard or soft adoption of the Parol Evidence Rule, considering evidence of the context at the time the parties contracted arguably would make the court’s interpretation more reliable.85 In the final section of my Argument, I explain why the Treaty of Olympia is an ambiguous contract, requiring courts to consult extrinsic evidence to accurately interpret the terms in the Treaty. Application of Contract Law to Find Trust Duties in the Treaty of Olympia As the Quinault have begun an arduous relocation process, tribal leaders draw upon the tribe’s trust relationship with the United States to advocate for funding. 86 These leaders point to treaty and trust obligations that the federal government has failed to uphold, which, if left 82 11 Williston on Conts. § 33:2 (4th ed. 2024). See CNH Indus. N.V. v. Reese, 583 U.S. 133, 139 (2018). 83 11 Williston on Conts. § 33:2. See Lozano v. Montoya Alvarez, 572 U.S. 1, 12 (2014). 84 11 Williston on Conts. § 33:2. 85 See Posner, supra note 79, at 562. 86 See Tribal Voices, Tribal Wisdom: Strategies for the Climate Crisis Hearing Before the H.R. Comm. on the Climate Crisis, 117th Cong. 35 (2021). 14 unaddressed, will hinder tribes’ climate resilience endeavors.87 Contrary to assertions by other scholars, nowhere in the Treaty of Olympia’s text does the word “trust” appear.88 Nevertheless, contract principles illustrate that language requires deconstruction, and the absence of terms in a writing does not deem them excluded.89 For an ambiguous document like the Treaty of Olympia, deferring to contract rules can help courts discern the parties’ intent, the contract’s purpose, and each party’s obligations based on what they contracted.90 In light of the ambiguity exception, the Treaty of Olympia can be reasonably understood to have two meanings: (a) solely reserving treaty rights to the Quinault in exchange for cession of land, or (b) reserving tribal treaty rights and vesting the federal government with a responsibility as trustee to protect the tribe’s land, welfare, and resources.91 As such, it becomes permissible to consult extrinsic evidence.92 For starters, the Treaty’s terms fail to encapsulate the history and inequality between tribes and the United States government that shed light on how treaties transpired to begin with. The Treaty of Olympia was forged when the United States sought to consolidate tribes and assimilate them into white culture.93 For the Northwest, President Franklin Pierce selected Isaac Stevens “to negotiate the treaties with the Indians in the territory, persuading them to transfer 87 See Legis. Hearing on H.R. 2719, the Tribal Coastal Resiliency Act Before the H. Nat. Res. Indian, Insular, and Alaska Native Subcomm., 114th Cong. 1 (2015); Testimony of Interested Individuals and Organizations Hearing Before the H.R. Comm. on Appropriations and the Subcomm. on Interior, Env’t, and Related Agencies, 116th Cong. 486 (2019). 88 See Treaty of Olympia, Quinault-U.S., Jan. 6, 1856. See also Reid Peyton Chambers, Judicial Enforcement of the Federal Trust Responsibility to Indians, 27 Stan. L. Rev. 1213, 1228 (1975). 89 See Hadjiyannakis, supra note 81, at 66. 90 See Pocatello v. State, 180 P.3d 1048, 1056 (Idaho 2008). 91 See supra note 82. 92 See Choctaw Nation v. United States, 318 U.S. 423, 431 (1943); Tim Wright, A History of Treaties and Reservations on the Olympia Peninsula, 1855–1898, U. Wash. 1, 11 (2011). 93 See Wright, supra note 92, at 8. 15 their lands to the federal government and move onto reservations.”94 In an 1854 letter, Charles Mix communicated to Stevens the need to make “permanent” treaties with the Northwest tribes “to extinguish Indian title to all the lands in the Territory, except for those lands which the Indians would require.”95 Through documents like the Treaty of Omaha, Stevens had a template for forming a treaty with these tribes.96 From Stevens’ view, “his task appeared straightforward -- he would extinguish aboriginal title to the land, establish the best lines for roads and railroads, and inaugurate a government that would provide the political stability necessary for the population to grow and the economy to flourish in the Northwest sector of the nation.”97 The United States’ assimilationist policy and the negotiations that ensued between tribes and Governor Stevens illustrate the unequal power dynamic between white and native men that influenced treaty-making and should shape how courts analyze Indian treaties.98 For interpreting the Treaty of Olympia, the contract principle that an ambiguous writing must be construed against the drafter proves critical given the United States’ dominion over the treaties it developed with tribal leaders.99 While the “eight treaties” Stevens negotiated contained similar language, the context around those interactions make treaty interpretation a crucial, complex process.100 Importantly, before the creation of the Treaty of Olympia, the United States attempted to 94 Wright, supra note 92, at 11. See Treaty History with the Northwest Tribes, Wash. Dep’t Fish & Wildlife, https://wdfw.wa.gov/hunting/management/tribal/history (last visited Apr. 21, 2025). 95 Robert B. Lane & Barbara Lane, Treaty Rights Workshop: Chehalis River Treaty Council and the Treaty of Olympia, Inst. for Dev. Indian L. 1, 6–7 (2011). 96 See Wright, supra note 92, at 11. 97 Richards, supra note 36, at 344–45. 98 See Wright, supra note 92, at 14. 99 See 11 Williston on Conts. § 32:12 (4th ed. 2024). 100 Treaty History with the Northwest Tribes, supra note 94. See United States v. Winans, 198 U.S. 371, 381 (1905). 16 gain control of Quinault territory through negotiations with the Chehalis River Treaty Council, leaders from a band of Washington tribes.101 The negotiation between Stevens and the tribes spanned multiple days and brewed animosity, given that the tribes “reasonably refused to sign away ‘all their right, title, and interest’ in their lands without more specific assurances.”102 Between Stevens’ misperception that the tribes would willingly hand over their land, and the tribes’ desire to select the specific site for their reservation, treaty negotiations ultimately failed in March of 1855.103 Despite the tribes’ attempt to “make considerable concessions,” Stevens adamantly refused to allow them any decision-making power in selecting their reservation site.104 While the Chehalis River negotiations did not result in any treaty, the Quinault reached a separate agreement, the Treaty of Olympia, with the United States only a few months later.105 While the Chehalis River negotiations ended on a sour note, they demonstrate the parties’ intentions for treaty-making and debate over treaty terms, which offer guidance for interpreting the Treaty of Olympia. During negotiations, Governor Stevens and the tribes present manifested an objective intent to enter into an agreement premised on specific, albeit somewhat conflicting, conditions. The clearest point of agreement revolved around treaty rights. Chief Taholah and other tribal leaders sought to preserve their rights to food sources and keep settlers off of their land.106 Stevens agreed to secure for the tribes the rights delineated in the Treaty of Olympia. 107 101 See Lane & Lane, supra note 95, at 12–26. 102 Id. at 3, 10. 103 See Alexandra Harmon, Reclaiming the Reservation: Histories of Indian Sovereignty Suppressed and Renewed 68, 73 (U. Wash. Press, 2019). 104 Lane & Lane, supra note 95, at 3–4. 105 See Wright, supra note 92, at 18. 106 See Lane & Lane, supra note 95, at 14–15. 17 By construing the Treaty of Olympia against the drafter, and thus in accord with contract law, the Supreme Court has interpreted its treaty rights broadly and in favor of the Quinault’s interests.108 While the federal government’s trust responsibility may not seem apparent in the Treaty of Olympia, the Chehalis River negotiations make a compelling case. As if pulling words from Cherokee Nation and Worcester, Stevens described the United States President as a “Great Father” tasked with placing tribes “under his protection,” and other officials as “Elder Brother[s]” and “Agent[s] . . . to look after them.”109 He assured the tribes that the reservation chosen for them would be their “permanent home . . . where [they] will be happy.”110 Stevens identified the government as a trustee responsible for securing a home for the tribes present, including the Quinault.111 The notion that Stevens acknowledged a trust responsibility translates to the Treaty of Olympia, which nearly replicates the proposed Chehalis Treaty, based on the contract principle that treaties must be construed in the light most favorable to the non-drafter.112 Over the years, the Supreme Court has applied contract principles to treaties between the federal government and tribes given their ward-guardian relationship. In Jones v. Meehan, 113 the Court reasoned that construing Indian treaties requires considering “that the negotiations for the treaty are conducted, on the part of the United States . . . by representatives skilled in diplomacy, 107 Treaty of Olympia, Quinault-U.S., art. III, Jan. 6, 1856. 108 See Washington v. Washington State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658, 676–78 (1979). 109 Lane & Lane, supra note 95, at 13, 16, 20 (emphasis added). 110 Id. at 15, 20 (emphasis added). 111 See Mary C. Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471, 1506 (1994). 112 See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 200 (1999); Choctaw Nation v. United States, 318 U.S. 423, 432 (1943); United States v. Winans, 198 U.S. 371, 380–81 (1905). 113 175 U.S. 1 (1899). 18 masters of a written language, understanding the modes and forms of creating the various technical estates known to their law.”114 Given this power imbalance, the Court held that treaties “must therefore be construed . . . in the sense in which they would naturally be understood by the Indians.”115 Since the Jones ruling, the Court and others have adopted a more liberal approach to treaty analysis, taking into account language barriers, the United States’ unilateral preparation of the treaties (like contracts of adhesion), and the absence of parties dealing at arm’s length.116 Although the tribes at the Chehalis River negotiations sought to hold onto treaty rights, “it is not clear how well the Indians understood Stevens’ words or the provisions and meaning of the treaties,” as “Chinook jargon, a trade medium of limited vocabulary and simple grammar, was inadequate to express precisely the legal effects of the treaties.”117 This obstacle is bolstered by the fact that tribes struggled to grasp concepts like title and ownership.118 Moreover, despite the Northwest Ordinance requiring the United States to exercise good faith towards tribes, Stevens took no precautions to ensure tribes understood the terms he proposed.119 Without these challenges, tribal leaders would more likely have recognized the consequences of the treaties they negotiated and fought to include specific duties for the federal government within them. Just as courts have flexibly interpreted the scope of express treaty rights, courts should adhere to “the principle that ambiguity or silence in agreements between the United States and a 114 Id. at 11. 115 Id. 116 See, e.g., Delaware Indians v. Cherokee Nation, 193 U.S. 127, 140 (1904); Choctaw Nation v. Oklahoma, 397 U.S. 620, 630–31 (1970). 117 Wright, supra note 92, at 14. 118 See id. at 4. 119 See Northwest Ordinance of 1787, July 13, 1787, 1 Stat. 50, art. III. 19 Native American tribe must be read to the tribe’s benefit.”120 The Treaty of Olympia may not state a trust responsibility, but extrinsic evidence like the Chehalis River negotiations and Stevens’ promises to the Quinault show the parties intended for the federal government to protect the tribe and their right to a permanent home.121 Recognizing an implicit trust responsibility in the Treaty of Olympia based on parol evidence coincides with the parties’ intent and reflects the duties of loyalty and prudence underlying contracts.122 To the Quinault, the government bears “a continuing obligation to consider Quinault concerns about the relationship established at that council in 1855” and to exercise loyalty and prudence in managing tribal land and resources.123 At this stage, the Treaty of Olympia remains supreme, binding law. Congress has not diminished the Quinault’s treaty rights, and the recognition of a trust responsibility in treaties has gained traction.124 Consequently, the federal government owes fiduciary duties to the Quinault as the tribe’s trustee, which requires it safeguard the express rights in the Treaty and the implicit rights to protection and a permanent homeland.125 As shown in Stevens’ interactions with the Quinault, the federal government willingly “assum[ed] . . . a ‘protectorate’ status” over tribes from which its “duty to protect the tribes’ land and resource base” stems, even in the absence of clear treaty language.126 The Treaty of Olympia implicitly obligates the government to secure the 120 Greene v. United States, 100 F.4th 1364, 1369–70 (Fed. Cir. 2024) (citing Hagen v. Utah, 510 U.S. 399, 423–424 (1994)). 121 See supra notes 101–103. 122 See John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L. J. 625, 658 (1995). 123 Harmon, supra note 103, at 75. 124 See Pocatello v. State, 180 P.3d 1048, 1057 (Idaho 2008). 125 See Larry B. Leventhal, American Indians -- The Trust Responsibility: An Overview, 8 Hamline L. Rev. 625, 632 (1985). 126 Leventhal, supra note 125, at 629. 20 Quinault’s land and livelihoods, which, without relocating Taholah, rest on perilous ground. Conclusion: “The Water Coming” To convey her tribe’s precarious state, Fawn Sharp used a single phrase: “Noskiako’s” -- meaning, “the water coming.”127 In doing so, Sharp laid bare the undeniable truth that a failure to relocate could reduce the Quinault to nothing more than a memory, swept away by the roaring tides.128 If tribal resources and land become so diminished that they cannot give substance to the tribe’s treaty rights, and the federal government takes no initiative to ensure those rights remain fulfilled, that is a breach of the government’s contractual obligations to the Quinault.129 To gain the necessary funds for relocation, the Quinault should file breach of trust claims against the federal government grounded in the Treaty of Olympia and contract law.130 By presenting their Treaty as an express contract, the Quinault avoid the Mitchell decisions’ narrow framework and showcase their trust relationship with the United States -- one rooted in offer and acceptance, formal promises, and binding agreements.131 In the end, relocation comes at a cost to the United States, but for the Quinault, that cost could save them from losing “[e]verything.”132 127 Legis. Hearing on H.R. 2719, the Tribal Coastal Resiliency Act Before the H. Nat. Res. Indian, Insular, and Alaska Native Subcomm., 114th Cong. 3 (2015). 128 See Stern, supra note 69, at 184. 129 See Gerbatsch, supra note 4, at 185. 130 See Warner, supra note 71, at 927–28. 131 See Wood, supra note 111, at 1547. 132 Gerbatsch, supra note 4, at 195.
