10.1 Treaty-Based Hunting, Fishing, and Gathering Rights
3 min read•august 12, 2024
Treaty-based hunting, fishing, and gathering rights are crucial for Native American tribes. These rights, rooted in historical agreements with the U.S. government, allow tribes to access and use resources on ancestral lands, even outside reservations.
Understanding these rights involves complex legal principles like usufructuary rights, the reserved rights doctrine, and aboriginal title. Treaties are interpreted in favor of tribes, with off-reservation rights and being key issues in preserving and resource access.
Treaty Rights and Interpretation
Usufructuary Rights and the Reserved Rights Doctrine
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- Usufructuary rights grant tribes the right to use and enjoy resources on their ancestral lands, including hunting, fishing, and gathering, without owning the land outright
- The reserved rights doctrine holds that treaties are grants of rights from tribes to the federal government, and any rights not explicitly granted are reserved by the tribes
- Aboriginal title refers to the inherent rights of indigenous peoples to their ancestral lands based on traditional use and occupancy, recognized by the U.S. legal system
Treaty Interpretation and Canons of Construction
- Treaties between tribes and the federal government are interpreted as the tribes would have understood them at the time they were signed, considering language barriers and cultural differences
- Canons of construction are legal principles used to interpret treaties in favor of tribes, resolving ambiguities in their favor (Winters v. United States)
- Treaties are considered the supreme law of the land under the U.S. Constitution, and their provisions supersede conflicting state laws or regulations
Off-Reservation Rights and Jurisdiction
Off-Reservation Rights and Usual and Accustomed Places
- Many treaties protect tribes' rights to hunt, fish, and gather on lands outside their reservations, particularly in "usual and accustomed" places where they traditionally exercised these rights
- Usual and accustomed places are locations where tribes historically hunted, fished, or gathered, and these areas are protected by treaty rights even if they are not within reservation boundaries (U.S. v. Winans)
- Tribes may have exclusive or shared access to resources in these areas, depending on the specific language of the treaty and historical context
State Jurisdiction and Tribal Sovereignty
- States generally lack jurisdiction over tribal members exercising treaty rights on reservations or in usual and accustomed places, as these rights are protected by federal law
- Tribal sovereignty means that tribes have the inherent right to govern themselves and manage their internal affairs, including regulating hunting, fishing, and gathering activities by their members
- State regulations may apply to tribal members exercising treaty rights off-reservation only if they are necessary for conservation, do not discriminate against tribes, and do not infringe on tribal self-governance (Puyallup Tribe v. Department of Game)
Conservation and Management
Regulation, Conservation, and Abrogation
- Tribes and the federal government may regulate and limit treaty rights for conservation purposes, ensuring sustainable use of resources for future generations
- The federal government has the power to abrogate (terminate) treaty rights, but it must do so explicitly and compensate tribes for the loss of these rights (Menominee Tribe v. United States)
- Abrogation of treaty rights requires a clear statement of congressional intent and cannot be done lightly, as it represents a significant infringement on tribal sovereignty and property rights
Co-Management, Subsistence Rights, and the Federal Trust Responsibility
- agreements between tribes and state or federal agencies allow for shared decision-making and cooperative management of natural resources, recognizing tribal expertise and traditional ecological knowledge
- Subsistence rights protect tribes' ability to hunt, fish, and gather for traditional, non-commercial purposes, such as cultural practices, religious ceremonies, and sustenance (Alaska National Interest Lands Conservation Act)
- The federal obligates the federal government to protect tribal resources, rights, and interests, including treaty rights, and to act in the best interests of tribes (Seminole Nation v. United States)
Key Terms to Review (18)
Assimilation policies: Assimilation policies are strategies implemented by governments aimed at integrating minority groups into the dominant culture, often resulting in the erosion of the minority group's distinct cultural identities. These policies can manifest through various means, such as education, legislation, and social programs, all designed to promote conformity and discourage cultural differences. In the context of Indigenous peoples, these policies have historically led to significant loss of language, traditions, and land rights.
Co-management: Co-management is a collaborative approach to resource management that involves shared decision-making between government authorities and indigenous communities. This strategy recognizes the rights and traditional knowledge of indigenous peoples, ensuring that they have a significant role in managing resources such as hunting, fishing, gathering, timber, and agricultural lands. By integrating both scientific data and indigenous practices, co-management aims to achieve sustainable outcomes that benefit both the environment and the communities involved.
Federal Preemption: Federal preemption refers to the principle that federal law takes precedence over state laws when the two are in conflict. This concept is crucial in areas involving Native American law, as it determines the extent of tribal sovereignty and the authority of state regulations versus federal treaties and statutes.
Indian Removal Act: The Indian Removal Act of 1830 was a law passed by the U.S. Congress that authorized the forced relocation of Native American tribes living east of the Mississippi River to lands west of the river. This act was part of a broader policy of Indian removal, which aimed to open up land for white settlers and led to significant loss of life and culture among Native American communities.
Indian Reorganization Act: The Indian Reorganization Act (IRA), enacted in 1934, aimed to reverse the assimilation policies of the previous allotment era and restore tribal sovereignty by promoting self-governance and economic development for Native American tribes. This act provided a framework for tribes to create their own governments and manage their lands, marking a significant shift in federal Indian policy.
Intergovernmental Agreements: Intergovernmental agreements are formal accords between different levels of government, such as tribal, state, and federal entities, to cooperate on specific issues or projects. These agreements are crucial for facilitating collaboration, clarifying roles, and ensuring that the interests of all parties are recognized and upheld, especially in contexts involving resource management and self-determination.
National Congress of American Indians: The National Congress of American Indians (NCAI) is the oldest and largest national organization representing Native American tribes and their interests in the United States. Established in 1944, NCAI advocates for tribal sovereignty, treaty rights, and the protection of Native American cultural heritage, serving as a crucial voice for Indigenous peoples in political and legal matters.
National Environmental Policy Act: The National Environmental Policy Act (NEPA) is a United States environmental law enacted in 1969 that requires federal agencies to assess the environmental impacts of their proposed actions before making decisions. NEPA's purpose is to promote informed decision-making and public involvement in the review process, ensuring that the potential effects on the environment are considered in federal projects. It plays a significant role in balancing development and environmental protection, impacting various areas including treaty-based hunting, fishing, gathering rights and mineral rights and energy development on Indian lands.
Native American Rights Fund: The Native American Rights Fund (NARF) is a nonprofit organization dedicated to protecting and advancing the rights of Native American tribes and individuals through legal representation, advocacy, and education. Established in 1970, NARF plays a crucial role in fighting for treaty rights, cultural property rights, and addressing broader issues affecting tribal sovereignty and self-determination.
Self-Determination: Self-determination refers to the right of individuals and communities, particularly indigenous peoples, to determine their own political status and pursue their economic, social, and cultural development. This principle empowers tribes to govern themselves, make their own decisions, and control their own resources, reflecting a fundamental aspect of tribal sovereignty.
State jurisdiction: State jurisdiction refers to the legal authority of a state to govern and enforce laws within its territory, including the power to regulate activities such as hunting, fishing, and gathering. This authority is shaped by historical treaties, contemporary legal conflicts, and landmark court cases that define the boundaries of state power in relation to Native American rights. Understanding state jurisdiction is crucial to navigating the complexities of tribal sovereignty and the balance between state and federal authority.
Sustainable harvesting: Sustainable harvesting refers to the practice of collecting natural resources in a manner that maintains the ecological balance and ensures that the resource can regenerate for future use. This concept emphasizes the need for responsible management of hunting, fishing, and gathering practices to protect wildlife populations and their habitats while also respecting the cultural rights of indigenous communities.
Treaty of 1855: The Treaty of 1855 was a significant agreement between the United States government and various Native American tribes, primarily focused on securing land rights and establishing hunting, fishing, and gathering privileges for those tribes in the Pacific Northwest. This treaty was crucial in defining the relationship between the U.S. government and Native American tribes regarding their traditional rights to access natural resources, laying the groundwork for future legal and political battles over treaty rights.
Treaty of Fort Laramie: The Treaty of Fort Laramie, signed in 1851, was an agreement between the United States government and various Native American tribes to establish peace and define tribal territories. This treaty marked a significant moment in U.S.-Native American relations, as it aimed to limit conflict over land use, but also set the stage for future treaties that would further erode tribal sovereignty and rights.
Tribal sovereignty: Tribal sovereignty refers to the inherent authority of Indigenous tribes to govern themselves, make their own laws, and manage their internal affairs without external interference. This concept is foundational for recognizing tribes as distinct political entities, and it connects deeply with historical and contemporary legal frameworks surrounding Indigenous rights and governance.
Trust Responsibility: Trust responsibility is a legal obligation of the federal government to protect the interests and resources of Native American tribes and their members. This principle stems from treaties, statutes, and historical relationships, establishing a fiduciary duty that the government must uphold in managing tribal lands, resources, and governance.
United States v. Oregon: United States v. Oregon is a landmark Supreme Court case from 1905 that addressed the treaty-based rights of Native American tribes to fish and gather in their traditional territories. This case clarified the legal recognition of these rights, establishing that treaties signed with Native American tribes must be upheld by state laws and federal regulations, particularly regarding hunting, fishing, and gathering practices.
United States v. Winans: United States v. Winans is a landmark Supreme Court case from 1905 that confirmed the hunting and fishing rights of Native Americans on their ancestral lands, emphasizing the importance of treaties between the United States and Indigenous tribes. The ruling established that these rights were preserved even when the land was sold to non-Native individuals, underscoring the ongoing sovereignty of Native tribes and their self-governing authority.