by Anna V. Smith, High Country News
October 5, 2026
The Smokehouse Tidal Marsh project on the Swinomish Indian Reservation, which began in 2022, will turn 250 acres of former agricultural land into estuaries and wetlands. It’s one of many tribal community projects aimed at restoring endangered and threatened populations of Puget Sound chinook salmon, Puget Sound steelhead, bull trout and southern resident killer whales in the Skagit River Watershed. A primary cause of decline for each of these species is habitat loss and degradation caused by development and agriculture.
“Over the past 150 years or so, there’s been significant damage to the habitat, and (the habitat is) what salmon needs,” said Swinomish Tribal Indian Community Chairman Steve Edwards, who has fished in the area for over 50 years.
In July, the Trump administration dealt a massive blow to tribal efforts when it finalized changes to the federal government’s interpretation of the 1973 Endangered Species Act. Previously, the definition of “harm” to a species included the habitat and resources a species needs to survive. Now, agencies will interpret “harm” to mean only the intentional killing or harming of an individual of a species, dramatically narrowing the reach and scope of the law formerly focused on ecosystem-wide protection.
On July 14, the same day the rule change was finalized, the Swinomish and Squaxin Island tribes sued the federal government over its “radical reinterpretation” of the law, arguing that the Trump administration’s changes ignored over 50 years of congressional intent and Supreme Court case law.
“Squaxin’s cultural and economic well-being depend upon the health and sustainability of Pacific Salmon and other freshwater and marine resources, which play a central role in the daily lives of Tribal members,” the tribes wrote in the lawsuit.
Chairman Edwards told High Country News that federal agencies never responded to the Swinomish Tribe’s request for government-to-government consultation, despite the United States’ trust obligation to Native nations.
“Over the past 150 years or so, there’s been significant damage to the habitat, and (the habitat is) what salmon needs.”
“It feels almost like we’ve been betrayed by our federal trustees,” Edwards said of the change, which he said diminishes their treaty rights. “It’s super disturbing that we had to fight this fight.”
Many Native nations opposed the changes in public comments when they were proposed in 2025. They highlighted the lack of tribal consultation, as well as the devastating impacts the new interpretation could have on the recovery of imperiled species, many of which have cultural, spiritual and relational meaning and importance to tribal citizens.
The change could also disrupt fishing communities’ economies and deprive those who rely on salmon for subsistence.
While the majority of the comments came from Native nations in the Pacific Northwest and were related to salmon, others came from tribes like the Pueblo of San Felipe, which cited impacts on the monarch butterfly and Suckley’s cuckoo bumblebee. The Fallon Paiute-Shoshone Tribe voiced concern for the Dixie Valley toad, which the tribe considers a relative.
“It is obvious that removing water from a species that needs water to survive harms both individual members of the species and the species’ population,” wrote Fallon Paiute-Shoshone Tribe Chairwoman Cathi Williams-Tuni, about the change and the potential impacts of a nearby proposed geothermal project.
That geothermal project was halted in 2022 after the toad was listed as endangered, but the Trump administration’s changes could allow it to resume.
“These harms in Dixie Valley would be catastrophic, permanently ruining the Tribe’s sacred site and ending the ability to use the springs for medicine and ceremonies,” said Williams-Tuni in public comments.
The tribes asked the court to prevent the regulatory changes from moving forward, which took effect Sept. 14, and requested a decision declaring the changes unlawful and reverting to the previous definitions of “harm.” Although they hope for a timely response, the tribes are prepared for the lawsuit to take months to resolve.
The rule change is advantageous for developers and industry, who may no longer need to consider or mitigate broader habitat impacts of their actions. Previously, if an activity would destroy habitat in a way that harmed a protected species, the business responsible would have to go through a permit process that normally triggered tribal consultation. Under the new changes, such permits would be required much less frequently, effectively cutting tribes out of the process. The changed definition will also require proof that the harm was intentional, which is something difficult to prove in the legal system, according to Bob Anderson, Oneida Indian Nation visiting professor of law at the Harvard Law School and a member of the Bois Forte Band of the Minnesota Chippewa Tribe.
“Companies won’t have any incentives to negotiate with the government or environmental groups or tribes about how their activities are going to affect the listed species,” Anderson told HCN.
The change could also impact large-scale agreements on rivers with ESA-listed species, according to Anderson. Currently, river systems like the Klamath, Elwha and Columbia all require water to be released from their dams at certain times of year to support the migration and spawning cycles of endangered or threatened salmon, in accordance with the ESA. The new interpretation throws existing agreements and laws into question and would make salmon recovery exponentially harder.
“We’re not even close to delisting these species,” said Kayeloni Scott (Nez Perce and Spokane), executive director of the Columbia River Snake Campaign, a coalition of conservation groups, businesses and the Nez Perce Tribe. “Our goal is abundance — healthy and abundant populations — that’s a whole other level, a whole other tier. Even getting to delisting, we’re pretty far off.”
“It feels almost like we’ve been betrayed by our federal trustees,” Edwards said of the change, which he said diminishes their treaty rights. “It’s super disturbing that we had to fight this fight.”
Anderson believes that the tribes and environmental groups’ legal arguments are strong but added that they involve a level of political risk, given the administration’s reputation for being highly retaliatory. One striking example is that of the Miccosukee Tribe of Indians of Florida, which joined a lawsuit against the administration in July 2025 over the construction of an immigration detention center in the Everglades. That December, President Donald Trump vetoed an unrelated bipartisan bill that would have returned land to the tribe, citing the tribe’s opposition to the detention center as his reasoning for the veto, calling the Miccosukee Tribe “unaligned with my Administration’s policy of removing violent criminal illegal aliens from the country.”
“That’s a real message there to plaintiffs that they’re going to retaliate against you,” Anderson said. “You’re locking horns with the federal government.”
Despite the latest development, Edwards’ priority is upholding the nation’s sovereign rights for future generations. He says the tribe will not stop its restoration work.
“It does impact our sovereignty,” Edwards said of the change to species protections. “Generations down the road, I want (Swinomish citizens) to be able to exercise their treaty rights like I have done in the past.”
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This article appeared in the October 2026 print edition of the magazine with the headline “Tribes sue over ‘harm’.”
This article first appeared on High Country News and is republished here under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
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