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The law of Native American hunting, fishing and gathering rights outside of reservation boundaries in the United States and Canada.

ABSTRACT: This article examines and compares the law of Native American/Aboriginal hunting, fishing and gathering rights in those areas which are located outside of reserved land area in Canada and the United States. The article argues that despite the differing statutory and constitutional traditions, both states' law and policy towards the Native American continues to reflect the underlying premises of the colonial project. While indigenous peoples have significant use rights, national, state and provincial power remains the primary locus of regulatory authority. However, there may be opportunities to extend use and co-management rights to allow tribes to be involved in land use and environmental regulatory decisions. Ultimately, changes in the doctrine of indigenous usufructuary rights over time suggests that constitutional innovation, not simply incremental judicial decision-making, will be necessary if the two nations wish to address fully some of the historic grievances of indigenous people.


  I. Introduction
 II. The American Doctrine of Off-Reservation Hunting, Fishing and
 Gathering Rights
     A. The Source of the Hunting, Fishing and Gathering Rights
        1. Historical Occupation and Use
        2. Federal Power
     B. General Principles of Interpretation
        1. Reserved Rights Doctrine
        2. Fiduciary Obligations and the Protective Canons of
        Statutory and Treaty Construction
        3. Specific Interpretive Assumptions in Hunting, Fishing and
        Gathering Rights cases
     C. Territory Where Rights Are Exercised
        1. Aboriginal Title
        2. Ceded Territory or Territory Set Aside for Tribes for
        Tribal Use Outside of Reservation Boundaries
     D. Who May Exercise Hunting, Fishing and Gathering Rights
     E. Determining the Content and the Scope of Hunting, Fishing and
     Gathering Rights
     F. Regulation and Limitations of the Right
        1. Cultural Limitations, Traditional Uses and the Moderate
        Living Doctrine
        2. State Jurisdiction over Natural Resource Use and Exercise
        of Right
     G. Extinguishment
        1. Aboriginal Title
        2. Treaty Rights or Statutory Agreements
III. The Canadian Doctrine of Off-Reserve Hunting, Fishing and
Gathering Rights
     A. The Source of the Hunting, Fishing and Gathering Rights
        1. Historical Occupation and Use
        2. Reconciliation with Common Law
     B. General Principles of Interpretation
        1. The Purposive Approach
        2. Honour of the Crown
        3. Specific Interpretive Assumptions in Hunting, Fishing and
        Gathering Rights cases
     C. Who May Exercise The Rights
     D. Territory Where Rights Are Exercised
     E. Determining the Content and the Scope of Hunting, Fishing and
     Gathering Rights
        1. Aboriginal Title
        2. Aboriginal Rights
        3. Treaty Rights
     F. Regulation and Limitations of the Right
        1. Justification Analysis
        2. The Cultural Limitation on Exploitation of Usufructuary
        3. Extinguishment
   IV. Conclusion: Politics, Law and History in American and Canadian
   Indigenous Usufructuary Rights


This article examines and compares the law of Native American/Aboriginal hunting, fishing and gathering rights in those areas which are located outside of reserved land area in Canada and the United States. This law allows these groups to exploit the resources in a manner which is not available or is illegal for non-tribal members. Emphasizing the historical basis of this legal doctrine, the article argues that despite the differing statutory and constitutional traditions both states' law and policy towards the Native American continue to reflect the underlying premises of the colonial project. While indigenous peoples have significant use rights, national, state and provincial power remains the primary locus of regulatory authority. Nevertheless given the continued pressure on natural resources, there may be opportunities to extend use and co-management rights to include legal claims for tribes to be involved in land use and environmental regulatory decisions in order to protect usufructuary interests.

Law was crucial to the colonialist enterprise. Indeed, from the European perspective, colonialism was a legal enterprise. "The archives of Western colonialism ...," Robert A. Williams writes, " ... reveal a profusion of laws that were drafted, enacted, obeyed, ignored, or defied in pursuit of Europe's will to empire." (1) Law "gave the Anglophone a way of seeing aboriginal peoples both as organized groups and as individuals" and it was a key mechanism by which the colonialists dealt with the occupants of newly settled territories. (2) It was one of the means by which the settlers structured their relationships with indigenous peoples and established the basic legal instruments by which governmental authority and colonial property rights were established. Later as the colonial state established jurisdictional hegemony, the law was used to control, pacify, amalgamate and govern indigenous populations. (3)

The extension of law created new cultural and legal boundaries between the colonizer and the aboriginal communities and outlined the basis of a relationship between the aboriginal groups and the colonizers under the law of the colonizing power. This relationship has been complex and has varied across time and place but in all cases aboriginals were not simply passive victims. Rather, they were active participants in their own history. As stated by Lauren Benton "[c]onquered and colonized groups sought ... to respond to the imposition of law in ways that included accommodation, advocacy within the system, subtle delegitimation, and outright rebellion." (4) Law, and the ideology of rights and state power embedded within it, provided a way by which colonized groups could resist some of the more egregious demands of the settlers as well as enabled the colonial state to ameliorate, if state authorities so chose, some of the more brutal aspects of settler interaction with indigenous peoples. (5)

It is from this interaction that indigenous peoples retain, albeit in truncated form, usufructuary hunting, fishing, and gathering rights in a manner that would otherwise be prohibited by applicable law. These rights are either reserved by or derived from treaties, common law aboriginal title or common law aboriginal rights, or are based on the recognition of customary hunting, fishing and gathering practices under statute. Depending on the legal system and the type of use, these rights have been called "common law aboriginal rights," "usufructuary rights," "off-reservation rights," "reserved rights," "unextinguished rights," "inherent rights," "non-territorial aboriginal title" and "customary rights." They have been analogized to "profits a prendre," access rights" or easements by the courts. (6) The rights are non-territorial in the sense that they do not derive from, and are independent of, any present-day ownership interest in the land but rather arise from historical occupation and use of particular lands and waters. They can include not only the right to use resources for personal sustenance or religious purposes but also may provide some insulation from governmental regulation, a right to a specific share of the harvested resource, as well as a right to preserve the resource from activities that might damage continued use. (7) Occasionally the use rights can include commercial exploitation.

Disputes between aboriginal peoples and states over the definition, allocation and use of natural resources are often the core of the indigenous-state relationship and have rarely been settled simply and amicably. The disputes over usufructary rights energize many politically potent interest groups as well as implicate fundamental social values. Hunting and fishing are important industries in each country. Employment in many areas where the rights are asserted is often specifically geared to tourism or extractive industries. Naturally, lumbering, ranching and extractive industries are concerned about what impact the potential aboriginal uses (or an aboriginal veto over their use) would have on their activities. Environmentalists doubt the ability of governments and aboriginal groups to effectively manage the resource. At the same time, other non-aboriginal groups complain that recognition of additional use rights is discriminatory, racist and/or violates their equal rights. Private landowners complain about the erosion of private property rights. States and provinces complain about the extension of national and judicial power into areas historically subject to their control or about the inability of aboriginal groups to regulate their own activities, thus restricting the opportunities of non-aboriginals to use the resources and as well as overexploiting them. Local governments likewise resent the intrusion by courts and other levels of government into their jurisdiction and local area. All levels of government complain about the security, ancillary enforcement and management costs which arise during the disputes or where indigenous use rights have been recognized.

A further complication is that the nature of the resources and interests make it difficult for the parties to compromise. At a basic level, access to natural resources is about aboriginal poverty and food but usually indigenous struggles to gain resources and territory are intertwined with claims for sovereignty, autonomy, cultural recognition and the redress of historical grievances. These are objectives that are not necessarily related to a particular resource use for subsistence, religious or economic purposes. Often indigenous groups are unwilling to separate self-government claims from claims of interest in property because they do not think of hunting, fishing and gathering in terms of simple natural resource usage. In addition, the issues often involve disputes within and among the indigenous groups themselves concerning the appropriateness of various groups to use the resources in a particular area. At the same time, the resources in question are often perceived, rightly or not, as being too limited to support the assumed increase in aboriginal exploitation that might occur should their use rights be recognized. There is a sense, particularly among hunting, fishing and tourism groups, that aboriginal resource use will derogate from non-aboriginal (primarily sporting) use. In this environment, where the parties believe that another's use can only be occasioned by a concomitant reduction in their own use, the perceived stakes are very high.

Aboriginal hunting, fishing and gathering issues also involve issues that are central to the foundation and development of social, legal and constitutional structures. Often the process of delimiting various rights forces policy and jurisprudential innovation (depending on one's point of view), and political divisiveness, which can undermine aboriginal relations with non-aboriginal socio-political groups, classes or institutions within the state. (8) Courts and policymakers have had to balance their commitment to equal rights and access to common areas for all citizens with historical and legal precedents which explicitly recognize that indigenous groups have rights not accorded to other citizens. They also must consider national constitutional limitations due to such requirements as federal structures or the separation of power restraints as well as the legal rights and political interests of sub-national units of government. The exertion of judicial power in these disputes often creates political opposition towards the judiciary and can undermine its more general role as guarantor of due process and rule of law. These difficulties are exacerbated because the disputes involve thorny issues of law and history that suffer from the usual indeterminacy inherent in such matters. The historical and legal issues can involve foundational myths of a particular society and implicate fundamental assumptions about the nature of individuals and the polity whose resolution turns on and affects "a set of ideas about what happens, what can be known and what [is] done" in a society - issues that cannot be easily and clearly abstracted into an analytical framework internal to the law. (9)


While the principles governing Native American activities within the reservation are relatively clear, the principles and the application of those principles in specific historical contexts involving aboriginal and treaty rights outside of the reservation are complex and less certain. The starting point of the analysis is certainly well settled: rights are reserved either explicitly or implicitly in treaty, statutory agreements or executive orders establishing reservations. (10) The rights reserved by tribal sovereigns have "a significant geographical component" which for the most part is limited to the reservation. Federal jurisdiction is paramount within the reservation, and state jurisdiction is paramount where an activity takes place off the reservation, absent some federal treaty or federal statute to the contrary." As the United States Supreme Court noted in Mescalero Apache Tribe v. Jones:

   [T]ribal activities conducted outside the reservation present
   different considerations. "State authority over Indians is yet more
   extensive over activities ... not on any reservation." Absent
   express federal law to the contrary, Indians going beyond
   reservation boundaries have generally been held subject to
   nondiscriminatory state law otherwise applicable to all citizens of
   the State. (12)

However, the issue becomes relatively complex once the analysis proceeds beyond the rule set forth in Mescalero Apache.

First, it is not always clear and often bitterly disputed what the historical circumstances surrounding the existence, content or extinguishment of aboriginal or treaty rights are. Typically, the disputes involve a degree of factual specificity which require the court to resolves difficult questions of historical fact and historiography. Second, the evidentiary problems are often compounded by the difficulty in determining legal import of treaty language or a federal statute(s) in light of the particular circumstances of the tribe claiming the rights. Through the use of interpretive approaches considered protective of Native American interests, the courts have generally eschewed a plain language approach to treaty texts or the application of traditional rules of statutory construction methodologies. As such, it has been necessary to consider the particular text in pari materia with other legislative enactments and in light of the general historical relationship between the Indians and the federal government in general, and in relation to the particular relationship of the federal government and the tribe claiming usufructuary rights. Third, even where the content and scope extent of the federal action is clear, off-reservation usufructuary privileges involve the balancing and blending of federal and state authority; an analysis that necessarily involves fundamental questions about the nature of the federal system. The rights provide the tribal member with immunity and/or pre-empt state regulation, but the state's interest as sovereign owner and trustee for wildlife has deep roots within American jurisprudence. (13) As Justice Douglas pointed out when discussing the rights of the Puyallup Tribe under the 1854 Treaty of Medicine Creek:

The police power of the State is adequate to prevent the steelhead from following the fate of the passenger pigeon; and the Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets. (14)

Indeed, despite the principle that the tribes on the reservations have the right to make their own laws and be governed by themselves, state regulatory interests can extend state jurisdiction and regulate activities of tribal member even within the reservation in certain instances. (15) Moreover, the state has a compelling interest in seeing that its powers are not divested to non-representative groups (from the state-federalist perspective) since the continued vitality of the federal system is dependent upon the idea of efficacious elected local governments. (16) Thus while the courts have narrowly defined the states' ability to regulate off-reservation activity for hunting and fishing, they have continued to hold that the state has legitimate interests in this domain, and they continue to apply structural considerations and the equal footing doctrine to federal actions which may affect the state authority. (17) As the 7th Circuit Court of Appeals noted in Wisconsin v. Baker.

There are other concerns besides facilitating communication between the United States and the Indians that may come into play when a court is asked to resolve a dispute regarding the interpretation of an Indian treaty. Preserving the power of state governments to promote public welfare is one such concern, and it is a weightier one than is the concern for facilitating communication between the United States and the Indians. Thus when, as in the case before us, interpreting a treaty as the Indians understood it would have the effect of divesting a state of some of its sovereign power over non-Indians, we will not adopt a rule that requires us to interpret the treaty as the Indians understood it. (18)

Related to the issue of state interest is the uncertainty about the extent to which a tribe can co-manage off-reservation treaty resources.

A. The Source of the Hunting, Fishing and Gathering Rights

1. Historical Occupation and Use

American law sources hunting, fishing and gathering rights in the historic tribal use, occupation and possession of territory by tribal entities, which exercised jurisdiction over territory. (19) In Johnson v. M'Intosh Chief Justice Marshall noted that the legal relationship governing American-Native American interaction was premised on the idea that the tribes were "the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion...." (20) According to Marshall and later Court decisions, the rule is derived from the earlier British practice during the era of discovery which was then adopted by the new United States. (21) While occupancy, use, and possession are often claimed by tribes to have existed from "time immemorial" there is no requirement that Indian title predate European discovery or assertion of sovereignty. It simply must be continuous and exclusive unless there was a forced removal. (22) Possession and use is not determined according to the criteria found in British and American common law. Rather it is determined relative to the cultural and economic practices of the particular tribe:

Indian possession or occupation was considered with reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way and for their own purposes were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals. (23)

The rights included in Indian title are "as sacred and as securely safeguarded as is fee simple absolute title." (24) It is "good against all but the sovereign" and can be terminated only by "sovereign act" of the federal government. (25)

The historic Native American possession of territory as legal basis for exercising various activities necessary for their continued governmental and physical survival is incorporated into American law by the Discovery doctrine as understood in Johnson v. M'Intosh (1823), Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832). (26) The doctrine presumed that "discovery gave title to the government by whose subjects, or by whose authority, it was made" against all other European governments and "necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it." (27)

Much attention has been focused on the justification this doctrine provides for the American colonial project that has dispossessed the tribes of their territory and lifestyle. It has been faulted for establishing the legal basis for the extension of state jurisdiction over tribes and the plenary power doctrine. The American version of this doctrine excluded the idea that international law rules (which were presumed to respect property rights upon the transfer of sovereignty or conquest) could govern the relationship between the tribes and the discovering Europeans. Rather it established that the relationship was to be governed by rules determined by the discovering power. However, unlike in other territories where the doctrine has been applied, American courts have incorporated legal rules which view tribal interests as legally cognizable under American law. In the seminal Indian cases Johnson v. M'Intosh, Cherokee Nation v. Georgia and Worcester v. Georgia it was established that subject to the national government's overarching sovereignty to extinguish title by purchase or conquest, the tribes have a legal interest in their territory; (28) they have a fiduciary relationship with the national government which can be used as a measure to evaluate governmental conduct; (29) and they are assumed to have governmental capacity and limited sovereignty over their territory, (30) which allows them to be governed by their own laws to the exclusion of state jurisdiction. (31) While judicial recognition of these protective premises has varied over the years, all subsequent Indian jurisprudence has been informed by them.

Finally, the pre-existing sovereignty of the tribes and the recognition of Native American legal possession establish that Indian-American relations operate across different spheres of authority and sovereignty. The relationship remains, in many important aspects, a political one, even though the plenary power of the federal government can extinguish tribal legal existence and title. The residual inherent sovereignty of the tribes provides them with an exclusive source of authority to manage certain aspects of their collective existence as well as precludes challenges from non-Indians based on due process and equal protection constitutional provisions that have arisen in off-reservation disputes. (32)

2. Federal Power

It is not necessary for there to be a treaty or a federal statute in order for Indian occupation and use of territory to be recognized by the courts:

   Nor is it true ... that a tribal claim to any particular lands must
   be based upon a treaty, statute, or other formal government action
   ... The fact that such right of occupancy finds no recognition in
   any statute or other formal governmental action is not conclusive.

Yet because the Discovery doctrine incorporated Native American occupancy and use rights into municipal law and subsequent federal treaties and legislation occupied the entire field of American-Indian relations, Indian use and occupancy are also federal rights. The 1789 U.S. Constitution, federal Non-Intercourse Acts, and early Supreme Court decisions transformed these "common law rights" as understood by the doctrine of aboriginal title into federally protected rights. (34) As noted by the 6th Circuit Court of Appeals regarding Chippewa fishing rights in Lake Huron:

The treaty-guaranteed fishing rights preserved to the Indians in the 1836 Treaty, including the aboriginal rights to engage in gill net fishing, continue to the present day as federally created and federally protected rights. The protection of those rights is the solemn obligation of the federal government, and no principle of federalism requires the federal government to defer to the states in connection with the protection of those rights. (35)

Federally guaranteed tribal rights are different from other federally guaranteed rights. While the original source of the tribal rights precedes the establishment of the American state (similar to the natural rights of the individual), the federal guarantees, premised on a political relationship between inherent sovereigns are more analogous to the federal/state structural relationship established by the Constitution. This ongoing political relationship inserts Indian rights and tribal existence into the state federal relationship. The 7th Circuit Court of Appeals highlighted the federal nature of the relationship in Wisconsin v. Environmental Protection Agency:

   Although the general model of sovereignty suggests that different
   sovereign states normally occupy different geographic territories,
   the existence of federations and confederations shows that
   overlapping sovereignty is also a common feature of modem political
   organization. In this case, we confront one of the more complex
   kinds of overlapping sovereignty that exists in the United States
   today: that between the States and Indian tribes. (36)

The federal nature of the tribal rights is demonstrated by and provides for the establishment of reservations and various usufructuary rights, by treaty, statutory agreement or executive order in territory far removed from a particular tribe's historic territory; a situation which commonly occurred, particularly during the removal period. These removed tribes continue to have various rights associated with their use and occupation of their historic territories despite their removal to a different area. On one hand, the continued use rights are a demonstration of federal constitutional authority. On the other hand, the establishment of the rights is predicated on the continuing political relationship the federal government maintains with the tribes - otherwise state authority and constitutional provisions such as the equal protection clause would prevent the federal action.

B. General Principles of Interpretation

1. Reserved Rights Doctrine

The reserve rights doctrine informs all legal interpretations of treaty texts or federal statutory agreements. (37) The doctrine, which has its source in international law, is an interpretive rule based on the status of the tribes as sovereign entities and possessors of territory and rights prior to the assertion of American sovereignty. (38) "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory". In this respect, they continue hold their "natural rights" to sovereign authority in areas where it has not been relinquished. (39) As noted by Justice O'Connor in Mille Lacs: "The Chippewa were on the land long before the United States acquired title to it." (40) In the oft-cited quotation in United States v. Winans the Court stated:

The treaty was not a grant of rights to the Indians, but a grant of rights from them, a reservation ot those not granted. And the form of the instrument and its language was adapted to that purpose. Reservations were not of particular parcels of land, and could not be expressed in deeds, as dealings between private individuals. The reservations were in large areas of territory, and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein. (41)

Under the reserved rights doctrine, all members of the signatory tribes retain whatever rights they possessed which are not conveyed or relinquished. (42) The rights reserved include all rights associated with the residual sovereignty of the tribes which is consistent with their dependent status, such as laws pertaining to local government over tribal members and rights to hunt, fish and gather as well as access rights to territory to carry out these activities.

The effect of the reserved rights doctrine can be overstated. Absent contrary language, the courts assume that the United States was negotiating for the unimpeded settlement and economic exploitation of the area. As such, the scope of rights obtained by the United States is not limited by the uses they intended in the area (e.g., agriculture, mining, cutting timber) but by the assumption that the treaty was a textual reference extending non-Indian jurisdiction into an area over which it had asserted a pre-existing claim of imperium. American negotiators' historically situated specific intent, e.g. to cut the white pine or clear the area of Indians, is not a limiting factor in determining the extent of the agreement. In contrast, the specific intent to reserve various uses is required by the courts when considering Native American reserved treaty rights. Moreover, these uses have generally been understood by the courts to be "traditional", thus limiting the range of reserved uses.

Nevertheless, the reserved right doctrine is an important aspect of American Indian jurisprudence and especially important in hunting, fishing and gathering disputes, since continued access to natural resources for food was usually a primary concern of tribes when they ceded territory. It has three implications for hunting, fishing and gathering privileges. First, the grant to the United States where hunting, fishing and gathering rights are explicitly or implicitly reserved must be narrowly construed. This narrow construction is consistent with the fiduciary relationship the grantor tribe continues to have with the United States. Second, activities that are not covered by the express terms or by implication, or by subsequent federal statute, remain within the governmental competence and use of the tribe. Included in this category is tribal regulation of off-reservation activities. Third, the rights reserved by the treaty are not "frozen" in time. The tribe, like any non-Indian user, can utilize modern harvesting methods and engage in modern commercial type activities involving harvested natural resources. This is consistent with the idea of the continuing sovereignty of the tribe as a contemporary source of authority.

2. Fiduciary Obligations and the Protective Canons of Statutory and Treaty Construction

A related interpretive principle is the idea that the federal government has fiduciary obligations towards the tribes. The trust responsibility is a judicially created legal doctrine derived from Justice Marshall's opinion in Cherokee Nation which incorporated earlier British and American policy into law. The obligations arise from the ongoing political relationship between the United States and the Native Americans. This relationship has reduced the once independent tribes, who were in some respects a "dependent and distinct people, occupying a country claimed by Great Britain, and yet too powerful and brave not to be dreaded as formidable enemies" to a state of dependency. (43)

In the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people, needing protection against the selfishness of others and their own improvidence. Of necessity, the United States assumed the duty of furnishing that protection, and with it the authority to do all that was required to perform that obligation and to prepare the Indians to take their place as independent, qualified members of the modem body politic. (44)

The trust responsibility is also a source of federal authority over the tribes and provides a standard for the judicial evaluation of Congressional and Executive action. (45) However, perhaps reflecting the plenary power of the federal government to deal with Native American as it sees fit, the obligations required by the court under the general trust relationship are limited. Unless the United States assumes or has control or supervision over tribal monies or properties no substantive fiduciary standards are required. (46)

For the most part, the trust responsibility impacts the area of hunting, fishing and gathering activities as an interpretive principle applied by the court to determine the existence, content and extent of a claimed right under a treaty or agreement as well as the character of the negotiating parties. (47) The principle requires the court to assume that the relationship between the tribe and the United States is one between two governmental entities with asymmetrical but nevertheless equally subsisting sovereignties. "Accordingly, it is the intention of the parties, and not solely that of the superior side, that must control any attempt to interpret the treaties." (48) This political relationship is ongoing; and historic representations made by the Americans as evidenced by treaty texts, statutory and executive agreements understood in light of the historic context, are legally efficacious. Moreover, the court is to assume that the federal negotiators operated in good faith and did not engage in any subterfuge or legal legerdemain to swindle the Indians. (49) There is an additional assumption that the United States intends to keep its agreements. Thus where an action is contrary to a representation by the United States (or adverse to tribal interests) the court will interpret the action so as to preserve the tribal rights unless Congress has explicitly stated its intent and it is evident to the court that that it considered the adverse consequences to the tribal interests and it choose to reconcile those opposing interests by curtailing or abrogating the tribal rights. (50)

The fiduciary nature of the tribal/federal relationship is most apparent in the "traditional canons of construction" which have been developed to interpret treaties, agreements incorporated into statute and executive agreements between the federal government and the tribes. The Supreme Court has generally approached hunting, fishing, and gathering rights as the outcome of specific set of historical circumstances, which led to the treaty or agreement. In appraising the particular constellation of historical events, the Court has recognized that treaties, statutes incorporating agreements or executive orders should be construed in light of the protective relationship the federal government has toward the tribes and their status as less powerful partners or unwilling participants to the agreement. (51) Resolving disputes about the extent and content of a particular text in favor of the tribes forces the United States to express itself more clearly and plainly when it drafts an Indian treaty, thereby ensuring that the agreements are voluntary because the Indian would have necessarily understood and agreed to the explicit terms of the agreement. (52) This voluntary aspect of American-Indian relations is central for the recognition and integration of Native American tribal governments and rights into the American federation.

The first protective principle holds that a treaty should be understood as the tribal signatories would have understood them to determine the extent of rights that are reserved by the agreement. The Court in Jones v. Meehan set forth some of the reasons for this rule:

   In construing any treaty between the United States and an Indian
   tribe, it must always ... be borne in mind that the negotiations
   for the treaty are conducted, on the part of the United States, an
   enlightened and powerful nation, by representatives skilled in
   diplomacy, masters of a written language, understanding the modes
   and forms of creating the various technical estates known to their
   law, and assisted by their own language; that the Indians, on the
   other hand, are a weak and dependent people, who have no written
   language and are wholly unfamiliar with all the forms of legal
   expression, and whose only knowledge of the terms in which the
   treaty is framed is that imparted to them by the interpreter
   employed by the United States; and that the treaty must therefore
   be construed, not according to the technical meaning of its words
   to learned lawyers, but in the sense in which they would naturally
   be understood by the Indians. (53)

This principle necessarily makes an analysis factually specific and incorporates tribal legal and cultural concepts into law; (54) since understandings of the tribal participants are imbricated with Native American cultural and legal concepts which are then subsumed in text. (55) For example, the Court in Menominee Tribe of Indians v. United States found that the 1854 treaty language "to be held as Indian lands are held" included the right to fish and hunt. The Court observed that the record showed that the lands chosen as a reservation in the 1854 Wolf River Treaty were "selected precisely because they had an abundance of game." (56) It would "seem unlikely," Justice Douglas, continued for the Court:

   [T]hat the Menominees would have knowingly relinquished their
   special fishing and hunting rights which they enjoyed on their own
   lands, and have accepted in exchange other lands with respect to
   which such rights did not extend. (57)

Nevertheless, this specificity as to historical and tribal circumstance is overlain by a general presumption in hunting, fishing and gathering cases. In these situations, it is presumed that absent explicit language, the tribes generally would have understood treaties and agreements to allow them to hunt, fish and gather within the reservation without hindrance. In addition, where a tribe initially secured hunting, fishing and gathering rights outside of a reservation, it presumes that the tribe would be unlikely to relinquish it unless it was provided some consideration--as Justice O'Connor notes in Mille Lacs when she considers whether the Chippewa had relinquished their 1837 hunting and fishing rights in the 1855 Treaty:

   The journal records no discussion of the 1837 Treaty, of hunting,
   fishing, and gathering rights, or of the abrogation of those
   rights. This silence suggests that the Chippewa did not understand
   the proposed Treaty to abrogate their usufructuary rights as
   guaranteed by other treaties. It is difficult to believe that in
   1855, the Chippewa would have agreed to relinquish the usufructuary
   rights they had fought to preserve in 1837 without at least a
   passing word about the relinquishment. (58)

The second principle is that doubtful expressions or textual ambiguities in treaty and statutes are to be resolved in favor of the tribal parties. (59)

By a rule of interpretation of agreements and treaties with the Indians, ambiguities occurring will be resolved from the standpoint of the Indians. And the rule should certainly be applied to determine between two inferences, one of which would support the purpose of the agreement and the other impair or defeat it. (60)

Put another way, this canon of construction prescribes that the wording of treaties and statutes ratifying agreements with the Indians is not to be construed to their prejudice. (61) The ambiguity may be in the agreement itself, or in various statutory expressions and/or ratifications of the agreement passed by Congress. (62) Of course, what precisely constitutes an unclear expression or phrase of course is the woof and warp of legal argument. Under the canons of construction an ambiguity can be found either in the text as it is presently analyzed or may be evident when the language is considered in light of a historical reconstruction of the negotiation context. "[L]nguage that seems clear on its face to twentieth century readers ... [may] have conveyed a different, ambiguous meaning to a person reading the same words in the early to mid-nineteenth century." (63) As such these "instruments cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them." (64) The historic context involving the ongoing relationship with the particular tribe and the context of negotiations is also important. Indeed, in treaty disputes such a review may be more determinative than the plain language of the text. As Justice O'Connor notes in Mille Lacs:

   [T]o reach our conclusion about the meaning of that language, we
   examined the historical record and considered the context of the
   treaty negotiations to discern what the parties intended by their
   choice of words. This review of the history and the negotiations of
   the agreements is central to the interpretation of treaties. (65)

The historical context, however may not take the content of the agreement or statute beyond what the meaning of the words can bear. Even though ambiguities are resolved to the benefit of the Indians, courts cannot ignore plain language when the historical context and a fair appraisal of the understandings of the parties cannot support a claimed tribal right. (66)

Third, the rules require that treaties and agreements should be construed liberally in favour of the Indians. (67)

The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith. This rule of construction has been recognized, without exception, for more than a hundred years.... (68)

The liberal construction rule is applied in two ways. On one hand, where there is a textual reference to particular reserved rights, the court should expand the content and extent of the claimed rights to include implicit activities which would have naturally been associated with the textual reference. For example, the Supreme Court in a series of cases concerning the contentious dispute over an anadromous fish in the Pacific Northwest has held that the treaty language reserving the "right of taking fish, at all usual and accustomed grounds and stations ..." included the right to fish without a license, an access right to cross private lands to fish and a guaranteed allocation of fish. (69) On the other hand, the rule applies where a treaty or an agreement is silent concerning a particular issue. For example, the Mille Lacs Court held that the usufructuary rights reserved by the 1837 Treaty were neither a profit a prendre nor a license. (70) Because the rights were not an interest in land, they were not extinguished by the subsequent 1855 treaty or the issuance of a fee simple patent; despite the Chippewa's understanding that land would be taken up for settlement which would eventually prevent certain uses. (71) In many instances textual silence relates to the purported extinguishment of abrogated treaty rights by the United States. In this case, the Court has held that treaty rights may not be extinguished by implication and required that either an explicit statement of treaty rights has been extinguished or "clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty." (72)

The Court has limited the reach of the liberal construction rule to a certain extent. Even with the strong presumption of liberality in construing a treaty or agreement, the court cannot rewrite the treaty by ignoring a reasonable interpretation of the treaty that is consistent with tribal understandings and the federal government's general trust obligation. The Court stated in United States v. Choctow Nation:

   It is said in the present case that the interpretation of the
   treaty in accordance with the views of the United States would put
   the Government in the attitude of having acquired lands from the
   Indians at a price far below their real value. Even if this were
   true it would not authorize the court in determining the legal
   rights of the parties to proceed otherwise than according to the
   established principles of interpretation, and out of a supposed
   wrong to one party evolve a construction not consistent with the
   clear import of the words of the treaty. But if the words used in
   the treaty of 1866, reasonably interpreted, import beyond question
   to the United States free from any trust, then the court cannot
   amend the treaty or refuse to carry out the intent of the parties,
   as gathered from the words used, merely because one party to it
   held the relation of an inferior and was politically dependent upon
   the other, or because in the judgment of the court the Indians may
   have been overreached. (73)

Nevertheless, such an exception provides more in the way of justification for governmental action rather than an analytical standard. The other way in which the reach of a treaty or agreement is restricted involves an offsetting presumption in favor of some other interest. In Montana v. United States, the Crow Tribe, relying on its inherent authority over reservation lands and its purported ownership of the bed of the Big Horn River based on two treaties, sought to prohibit ail hunting and fishing by nonmembers on non-Indian property within reservation boundaries. The ability of the tribe to regulate non-members on the Big Horn River was dependent upon its ownership of the riverbed. The treaty outlined the territory of the reservation but was silent as to the ownership of the streambed. The Court's opinion by Justice Stewart ruled that an opposite presumption provides title to Montana in spite of the admonition to liberally construe treaties and interpret them consistently with tribal understandings:

   But because control over the property underlying navigable waters
   is so strongly identified with the sovereign power of government,
   it will not be held that the United States has conveyed such land
   except because of "some international duty or public exigency." A
   court deciding a question of title to the bed of a navigable water
   must, therefore, begin with a strong presumption against conveyance
   by the United States, and must not infer such a conveyance "unless
   the intention was definitely declared or otherwise made very plain"

3. Specific Interpretive Assumptions in Hunting, Fishing and Gathering Rights cases

In hunting, fishing and gathering rights cases, the courts have applied additional interpretive principles and assumptions. First, where there are aboriginal and treaty rights, the courts assume that the rights will be subject to some governmental regulation. Second, that absent a treaty which designates new territory, a hunting, fishing and gathering activity is restricted to a particular area of land over which the tribe held aboriginal title over or an area over which it exercised enough historic usage such that the exercised activities could be characterized as an aboriginal right. Third, that the area where the rights are exercised could be reduced by subsequent federal activity such as issuing patents or land or flooding lands for irrigation and flood control purposes. Fourth, reserved natural resources are not exclusively for Indian harvest. Finally, the courts assume that the content of the reserved rights is in some sense related to historic traditional activities.

C. Territory Where Rights Are Exercised

The territory over which off-reservation rights can be exercised is dependent upon the territorial extent of a tribes' original Indian title or the areas described by treaty or legislation. It does not include the territory, whether privately owned, allotted or tribal, that is located within "Indian Country" as defined by 18 U.S.C.A [section] 1151. (75) The territory reserved by treaty or legislation may be either territory over which the tribe held original Indian title that was subsequently ceded to the United States or land that has been set aside out of the public domain by the federal government. The diminishment of the extent of territory over which usufructuary rights may be exercised is separate from the extinguishment of the rights.

1. Aboriginal Title

Off-reservation hunting, fishing and gathering rights may be exercised over those areas where a tribe holds unextinguished aboriginal title. Aboriginal title is the territory that a tribe historically occupied, used, and possessed. It is not defined with reference to American and common law concepts of property ownership but according to the usages and practices to which the territory was put by the Native Americans. These include use and occupation in an "accustomed Indian manner for fishing, hunting, berrying, maintaining permanent or seasonal villages and other structures, [and] burying the dead." (76) The historic uses remain important in determining the content of rights reserved under a treaty or legislatively ratified agreement. (77) Whether the particular tribe holds aboriginal title is a question of fact where the court makes a determination that the tribe claiming such title exclusively occupied the territory at issue. (78)

There has been little litigation concerning the hunting, fishing and gathering rights on territory over which the tribe holds aboriginal title as most Indian title in the United States has been extinguished. (79) Extinguishment of aboriginal title also extinguishes hunting, fishing and gathering rights based on that title. (80) However, the issue of what territory was occupied and used for off-reservation resource harvesting can be important where fishing rights have been impliedly reserved by treaty. Unless the treaty or reservation included language specifically reserving the area where fishing rights can be exercised, the extent and content of the reserved rights depends upon a finding of aboriginal use and possession over the fishing areas. (81)

2. Ceded Territory or Territory Set Aside for Tribes for Tribal Use Outside of Reservation Boundaries

Aboriginal title creates a legally enforceable property right against anyone but Congress. (82) The federal government can extinguish aboriginal title either by purchase or by simply taking the territory--an action that the Court has stated will not be "lightly implied." (83) Coupled with the power to extinguish aboriginal title is the power of the United States to determine which tribes held aboriginal title and the extent of the territory over which the tribe holds aboriginal title. (84) The boundary lines drawn by the respective parties in the process of negotiating treaties are the areas where off-reservation hunting, fishing and gathering rights are exercised today. These boundaries not or may not be identical to the original territory the tribe possessed prior to the agreement. (85)

The delineation and cession of territory in which aboriginal title is held by the signatory tribe by way of a treaty transforms the reserved aboriginal rights and Indian title reserved into constitutionally protected rights. At the same time, it entrenches the signatory tribe's collective existence and inherent residual sovereignty within the American federal system. (86) As Justice Marshall noted in Worcester. "The acceptance of these cessions is an acknowledgment of the right of the Cherokees to make or withhold them." (87) The aboriginal rights are not limited to the reservation but can extend throughout the ceded territory where they have been explicitly or impliedly reserved. (88) The result is that unlike possession based on aboriginal title, the territories and use rights reserved by treaty or statutory agreement may not be taken or encumbered without payment of compensation and interest under the Fifth Amendment of the U.S. Constitution. (84) Moreover the rights can only be extinguished by a clear and plain congressional statement or action. They also "encumber" the land regardless of whether or not a subsequent federal transfer to the state or a private individual includes a mention of them in the instrument of transfer. The tribes have the corresponding ability to bring suit to protect their resource use from state regulation as well as the competency to regulate off-reservation resource use. (90)

In this sense, the rights guaranteed by treaty, statutory agreement and executive order are a residue of previously existing aboriginal title held by the tribe which, in its original state, provides for the complete use and access rights necessary to maintain the Indians' hunting, fishing and gathering lifestyle. It is clear, however, that the rights reserved are subject to extinguishment or diminishment by subsequent federal action. First, territorial diminishment can occur because tribal members may have no access to particular parcels of land to exercise the reserved right. The lack of access arises from the bifurcation of usufructuary rights: the right to "take" game and fish ("owned" or held by the state in trust for the public) and a right of access to land to exercise the right. For example, the 1837 Treaty with the Chippewa does not include a right of access for the exercise of the reserved usufructuary rights. The starting point for determining the extent of the access in such a circumstance is the law regarding the right of access to public and private lands at the time the treaty was signed and the historic understanding of the parties. (91) Where a right of access is not reserved, the use right is limited to those lands which a tribal member would otherwise have access to as a member of the general public, i.e. "public lands." Yet the right itself is not extinguished on territory which the tribal member cannot access (such as school lands) or by the issuance of a federal patent to a private party. "In this sense" privately owned lands [to which tribal members have no access] do not include public lands formerly in private ownership or private lands open to public hunting, fishing and gathering." (92) Where the tribal members have no right of access however, the territorial extent of their ability to exercising to existing right is diminished. (93)

Second, the diminishment of territory may occur because the use right is diminished by settlement or restricted to certain territory by the treaty terms. In such a circumstance, the treaty language anticipates a gradual reduction in the territory to which the usufructuary right attaches as it is "occupied" or used by non-Indians i.e. settled and developed. The extent of the diminishment does not necessarily depend on the issuance of a federal patent (although in specific circumstances this could be determinative) but is rather the result of various state, federal and private entities or individuals "occupying" the land in a legal sense. This occupation extinguishes the underlying aboriginal rights reserved by the treaty. For example, in Idaho v. Cutler, two members of the Shoshone-Bannock Tribe killed two elk outside of their reservation. When issued a citation by the State of Idaho, they claimed they possessed off-reservation rights to hunt under Article 4 of the 1868 Fort Bridger Treaty, which states that the tribes shall have "the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts." (94) The land on which the elk were taken was open rangeland managed as a wildlife area. The Court found that the state managed wildlife area was "occupied" for purposes of the treaty because "the signatory Indians' understanding would not necessarily require actual physical presence or use to change land from an "unoccupied" to an occupied status." (95) It found that Idaho had maintained fencing and "other indicia of occupancy such as "signs, buildings, machinery, water projects, cattle guards, roads and campgrounds." (96)

Thus even though the state allowed hunting on the land, and the land itself was open rangeland apart from settlements, off-reservation rights were extinguished. (97) Similarly, the Mille Lacs II Court found that:

   It seems unlikely that the United States would have given the
   Chippewa an implied right of access to the 1837 ceded territory
   because such right could have eventually prevented certain uses of
   the ceded territory. (98)

Third, the territory over which the rights may be exercised may be diminished by the extinguishment of the right by a subsequent federal statute inconsistent with their continued existence. For example, in United States v. Peterson, the district court held that the establishment of Glacier National Park by Congress abrogated wherever hunting right the Blackfeet Tribe retained in the ceded lands within the boundaries of the park. (99) The Court held that the Blackfeet retained hunting rights in 1896 Agreement ceding some of their reservation lands that eventually became part of the national park. However, the statute creating the park revoked their right to hunt in the park even though tribal members continued to have the right of entry. (100)

D. Who May Exercise Hunting, Fishing and Gathering Rights

In American law there is no one definition of what constitutes the ethnological and political terms "Indian" or "Indian tribe." (101) Nevertheless, as the agreements which provide for off-reservation to hunt, fish, and gather are essentially contracts between two sovereign nations, only members of the signatory tribes (as legal-political entities) may exercise the rights. (102) Congress may further sub-divide the political legal entity of the tribe into smaller bands for purposes of negotiation and agreement, but these smaller units, while ethnologically part of a larger tribe, are considered separate "tribes" for the purpose of holding the particular treaty rights. (103) The rights are heritable but may not be transferred or alienated. A tribe itself must continue to exist and be recognized as existing by the federal government in order for the rights to continue. (104) A non-treaty tribe that later affiliates with a treaty tribe may share its treaty rights if the tribes merge or consolidate in a manner sufficient to combine their tribal or political structures. (105) However, unless the agreement provides for an expansion of the scope of the rights, such a merger establishes no independent rights. (106)

The courts have consistently held that one aspect of the retained inherent sovereignty held by a tribe is the power to determine its own membership. (107)

Included in this authority is the power to provide for ethnically non-Indian individuals to share in the citizenship rights and common property of the tribe. At the same time, Congress may supercede a tribal determination of who is a tribal member in a particular instance. Given the strong state interest in regulating natural resources, it is unlikely that an individual who has no Indian blood who has been acknowledged as a tribal member by the tribe, would be afforded immunity from state law to hunt, fish and gather. (108) Such tribal authority to create immunity from state law for individuals would be a power inconsistent with the tribes' status within the American federation; (109) and it would be not be necessary to protect tribal government or control the internal relations of the tribe. (110)

E. Determining the Content and the Scope of Hunting, Fishing and Gathering Rights

As discussed above, original Indian title encompasses the totality of uses to which a territory can be put. This full beneficial interest in the territory has been characterized at various times by the Supreme Court as rights of "complete ownership" (111) or "as sacred and securely safeguarded as is fee simple absolute title." (112) It provides the possessing tribe the "full use and enjoyment of the surface and mineral estate, and the fruits of the land, such as timber resources." (113)

The totality of hunting, fishing and gathering rights which can accompany a usufructuary reservation are similarly broad. While the modern day exercise of the rights must be related to historic uses at the time of the treaty, the intensity of particular resource harvesting and the methods used do evolve. The Mille Lacs II Court for example noted that:

   In 1837 the Chippewa used all of their surrounding natural
   resources to survive. They understood the phrase "hunting, fishing
   and gathering the wild rice" used in the 1837 treaty to mean
   "living off the land." They understood that the government wanted
   to harvest the pine timber, and they gave up any right to harvest
   that resource, but they did not understand the treaty to impose any
   other limits on the types of resources that they could harvest.
   They also did not understand that there were any restrictions on
   the time, place, or manner of the exercise of the privilege.... The
   evidence showed that the parties intended to permit continued use
   of the privilege for commercial purposes. In 1837 the Chippewa were
   engaged in the sale of harvested resources in the fur trade and to
   settlers and lumbermen. They understood that they would be able to
   continue these efforts. Although Band members testified at trial
   that "commercialization" is not the "Indian way", they also
   testified that they and their forbears have traded and sold furs,
   deer hides, wild rice, berries, and other resources to make a
   living.... The record reveals that the privilege granted in 1837
   includes the right to harvest the resources for commercial purposes
   .... The privilege granted in 1837 was not limited to use of any
   particular techniques, methods, devices, or gear. The Chippewa
   incorporated rifles and other Euro-American technology into their
   hunting, fishing, and gathering before the 1837 treaty and
   continued to use new technology after the treaty. Neither the
   treaty journal nor the language in the treaty indicates that the
   Band should be confined to techniques, methods, devices, and gear
   existing in 1837. (114)

Moreover, unless limited by the agreement, the right is not limited to the harvesting of particular species. (115)

In determining the content and scope of a treaty or agreement, the court may not incorporate into its analysis considerations concerning the impact the exercise of the reserved rights may have on third parties. The court is:

   [N]ot at liberty to dispense with any of the conditions or
   requirements of the treaty, or to take away any qualification or
   integral part of any stipulation, upon any notion of equity or
   general convenience, or substantial justice. (116)

While the content and scope of the reserved rights can be broad where they are reserved by treaty or agreement, the reserved content and scope depends on the three general considerations: 1) the wording of the particular instrument which reserved the rights; 2) the cultural, social and economic practices of the tribe at the time the treaty was signed; and 3) the understanding and intent of the parties as determined by a judicial evaluation of the historical context and the context of the treaty negotiation process in light of the protective canons of construction.

The text of the treaty or agreement remains the starting point for an analysis concerning the reservation and scope of off-reservation hunting, fishing and gathering rights. This approach is not as narrow as it appears at first glance because the text is not solely determinative of the content of the agreement even where it is textually unambiguous. The courts must "look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties." (117) Paradoxically, while the textual basis of the reserved rights need not be express on the face of the document, the courts, despite the reserved rights doctrine, have required that there be a textual basis for the rights reserved. (118) Moreover, the entire panoply of rights reserved by an agreement can not arise by implication unless an access right to hunt, fish and gather, either directly or by implication, is reserved. For example, the Mille Lacs I Court held where an access right is not granted to the Chippewa, the rights to hunt, fish, and gather are limited to the area to which the tribal members would have access. Without identifiable textual support in the treaty or agreement, the access rights of trial members are the same as those of general public who wish to engage in similar activities. Thus, the language limits the content or scope of the judicial exegesis because the reserved rights "should be construed in accordance with the tenor of the treaty" or the agreement. (119)

Where there is a textual basis for the reserved rights, the text must be read with the awareness that non-Indian American draftsmen wrote the language memorializing the agreement. As such, language is strictly construed against the drafter and any diminishment of tribal rights in favor of the United States must be done explicitly. Thus while the text provides only one part of the agreement from the Native American point of view, the text is the most probative evidence of Congressional intent from the perspective of the United States. Indian understandings and intentions memorialized in the agreement must comport with the language used, but the understanding and intentions of American negotiators, particularly regarding the extinguishment of rights previously reserved in other treaties or agreements, must be on the face of the document. Since the protective canons of treaty and statutory construction emphasize tribal understandings of the agreement, the court will consider the actual practices of the signatory tribe to determine the tribal understandings of content and scope of the agreement. In these situations the court will examine the tribe's historic cultural, social, and economic practices for evidence of what the tribal negotiators were intending to reserve. Where the tribe engaged in the claimed activities or where the activity played a highly significant role in the lives of the claimant tribe, the activity will be reserved absent limiting textual language. (120) If the tribe did not engage in the claimed activities at the time of the treaty, it is presumed that the activity was not reserved. As the LCO IX Court stated when discussing the existence of a reserved right to commercially harvest timber under the 1837 Treaty:

   In order for the right to exist in the first instance, it must be
   shown that the Indians were in fact using the resource, i.e., that
   they exercised this right, subsumed within their larger, aboriginal
   right to their land and water. (121)

Thus the predicate for a finding that the tribe has reserved various usufructuary rights is a proffering of historical, anthropological, and archaeological evidence which indicates that at the time the treaty was signed, the signatory tribes engaged in the claimed activities, or alternatively, engaged in historic activities which are retrospectively related to present day activities. (122)

The determination of the right is also related to tribal understandings of the agreement as determined by the court in light of the protective canons of Indian jurisprudence. (123) A judicial determination of these understandings is derived from an investigation of the practices of the signatory tribes as well as the historic context "including the history of the treaty, the negotiations, and the practical construction adopted by the parties." (124) Unless the negotiation occurred after a war, the tribes, as owners of unencumbered aboriginal title or rights reserved under a prior treaty or agreement, would not be expected to enter into an agreement without some offsetting consideration. As noted by the Winans Court, where the text suggests a reserved right, a judicial or political determination that the Indians acquired no rights under the agreement would certainly be "an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more." (125) Thus, where the tribes in the negotiating context exhibited a concern for the continued used of the ceded territory, particularly as it relates to subsistence hunting, fishing and gathering activities, the content and scope of the rights will be extended to those activities. (126)

F. Regulation and Limitations of the Right

1. Cultural Limitations, Traditional Uses and the Moderate Living Doctrine

The process of determining Indian understandings of an agreement from an historic review of the cultural, social and economic practices at the time of the treaty can circumscribe the claimed rights because the courts have limited the rights reserved to those activities which are found to be "traditional." In determining the parties' understanding of the agreement, the courts have constructed a version of tribal intentions within the negotiating process that equates tribal intent and tribal understanding with a judicial understanding of tribal culture at the time the treaty was signed. These court constructed indigenous understandings are relatively unsophisticated and are seemingly immutable in content, place, and time as well as shared across all Indian cultures. Tribes only negotiate to reserve specific traditional cultural practices and cannot seemingly reserve even reasonably anticipated prospective uses. Where the issue is commercial exploitation, be it hunting, fishing or logging, the intent and understandings of all tribal negotiators are deemed to be the same legally constructed intent regardless of the historic context or the terms of the agreement --the tribes only wish to hunt, fish and gather like they have always done.

For example, the LCO IX Court sought to determine whether Article 5 of the 1837 Treaty reserved commercial logging rights. The Court began its inquiry into the nature and scope of the rights included within the treaty text by examining what "practices and customs" of the Indians were at the time the treaty was negotiated. (127)

Ascertaining what the Chippewa were actually doing at the time of the treaties is a prerequisite to determining what they would have understood they were reserving. (128)

An evaluation of the practices of the Chippewa at the time led it to conclude that logging was not within the circle of activities in which the Chippewa engaged at the time they entered into the agreement with the United States because:

   This is not what the Chippewa harvesters were interested in
   exploiting at treaty time. They were seeking particular trees for
   their unique characteristics, for example, the gum of the balsam or
   the roots of the jack pine. They did not harvest trees for use as
   logs or for saw boards. (129)

As such, the Chippewa could not have intended to retain the commercial logging rights on the ceded territory:

   Logging large areas of trees would have had no purpose for the
   Chippewa: their mobile hunting and gathering life-style gave them
   no reason to build log homes or barns or to clear the land. To the
   contrary, they depended heavily on retaining many different species
   of trees and other forms of plant life from which they derived many
   specialized products and which served as habitat for the animals
   they hunted. (130)

It is not so much that the judicial construct comprehends historic Native American "traditional" activities and "traditional" trade in a historically inaccurate manner. (131) The case law suggests that the concept of "traditional" refers to the type of cultural practices and economic activity commonly thought to historically exist. It includes market based trading and commercial activities, provided such activities do not lead to the amassing of wealth. However, the underlying natural resource may not be "destroyed" or radically transformed through the use or harvest. It also means that tribes could not have reserved a wide range of usufructuary uses, or new uses that which might arise because of increased knowledge or new markets. In a sense, the tribe only reserves the specific use (including the specific object of that use such as subsistence) as it relates to a specific natural resource, and not the natural resource itself.

An obverse judicial assumption operates when the courts construe the intent of the American officials. In this case, the courts assume that they were negotiating for the unimpeded settlement and economic exploitation of the area. The content and scope of the rights secured by the agreement however are not limited by the uses they intended in the area (e.g., agriculture, mining, cutting timber) but by the assumption that the treaty was a textual reference extending settler jurisdiction to an area over which the United States had asserted a preexisting claim of imperium. The American officials historically situated specific intent, then, is not a limiting factor in determining the extent of the treaty or agreement. They bargained for and obtained as part of the agreement, all property interests and natural resources not otherwise explicitly or implicitly reserved under the appellation of "traditional." Regardless of the place, time or historically pressing objectives, the objective of absolute jurisdiction and maximal property conveyance from the Indians is essentially the same.

Another aspect of the court-defined traditional assumption is found in the determination that usufructuary rights are normally subject to an internal cultural limitation and that maintaining this cultural limitation was the intention of tribal negotiators when the rights were reserved. Usufructuary resource use is limited to what the Supreme Court has called a "moderate living" standard. (132) Regarding the amount of fish allocated under the 1855 Stevens Treaty to the Indians Justice Stevens wrote:

   [T]he central principle here must be that Indian treaty rights to a
   natural resource that once was thoroughly and exclusively exploited
   by the Indians secures so much as, but no more than, is necessary
   to provide the Indians with a livelihood--that is to say, a
   moderate living. (133)

This culturally circumscribed level of exploitation limits resource exploitation to subsistence levels and effectively precludes any resource exploitation for commercial purposes beyond the level needed to generate enough income to provide for necessary products that could otherwise not be obtained from the territory. (134)

The issue of off-reservation usufructuary rights for uses other than subsistence purposes does not seem to have appeared prior to the second half of the 20th century. Indians hunted, fished, and gathered for food. The courts did not distinguish between subsistence uses and commercial harvesting, probably assuming that such hunting, fishing, and gathering activities would be for subsistence purposes only. (135) Where the rights had not been extinguished, the state could restrict the use rights provided it did so in manner that did not discriminate against the tribes or effectively prevent the exercise of the rights and was for a legitimate state purpose such as conservation. The non-discriminatory and conservation element was evident in the 1942 case Tulee v. Washington where the U.S. Supreme Court noted that:

   [W]hile the treaty [of 1855 with the Yakimas and other Indians]
   leaves the state the power to impose on Indians equally with others
   such restrictions of a purely regulatory nature concerning the time
   and manner of fishing outside the reservation as are necessary for
   the conservation of fish, it forecloses ... a fee of the kind in
   question here. (136)

The issue only became manifest where the courts had allocated to the tribes a certain percentage of the harvest and the resource was not sufficient to meet Indian and non-Indian demand. (137) The confrontation between the state of Washington and the tribal signatories to various treaties signed in the Oregon territory in 1854 and 1855 became the focal point of this off-reservation jurisprudence. In Fishing Vessel the tribes had argued that they could take as many fish from the anadromous fish runs as they chose. The U.S. Supreme Court did not agree. It held that such an interpretation undermined the shared understandings that were basic to the treaty negotiation process:

   Nontreaty fishermen may not rely on property law concepts, devices
   such as the fish wheel, license fees, or general regulations to
   deprive the Indians of a fair share of the relevant runs of
   anadromous fish in the case area. Nor may treaty fishermen rely on
   their exclusive right of access to the reservations to destroy the
   rights of other "citizens of the Territory." Both sides have a
   right, secured by treaty, to take a fair share of the available
   fish. That, we think, is what the parties to the treaty intended
   when they secured to the Indians the right of taking fish in common
   with other citizens. (138)

The sharing of the fishery led the U.S. Supreme Court to approve the District Court's decision to allocate the fishery 50/50 between Indian and non-Indian users. However, this equal split was a "maximum but not a minimum allocation." (139) Following the reasoning of the lower court, Stevens, J. noted that the central principle which governs treaty disputes over natural resources is that the treaty "secures so much as, but no more than, is necessary to provide the Indians with a livelihood--that is to say, a moderate living." (140) This measure enables the allocation given to the Indians to be adjusted. If, for example, the tribe abandons the activity or "dwindles to just a few members" a large allotment, though allowed by the treaty, would not be required. Thus the doctrine allows for the reduction in a treaty guaranteed allocation should the tribe's needs be satisfied by a lesser amount of harvest.

The Court did not elaborate upon what precisely constitutes a "moderate livelihood" and the concept remains tied to issues of allocation. The LCO V Court took the position that the standard could be quantified. It found that even if the Chippewa harvested all the available treaty resources from the ceded territory they would not achieve a "moderate" standard of income. (141) The District Court in United States v. Washington however, found that the term is "not a term of art used by economists" and refused to apply an income standard to the doctrine stating it was a flawed "single-indicator analysis." (142) Rather it noted that the tribes "lag significantly behind other residents of the State of Washington in their overall standard of living." (143) It refused to apply the doctrine to reduce the tribe's share of harvestable fish. This approach is different again from that taken by the Mille Lacs IV Court when it interpreted the 1837 and 1842 Chippewa treaties as they relate to ceded territory in Minnesota. The Mille Lacs IV Court approached this issue with the purposes of the treaty and the intent of the parties in mind:

   [I]f an allocation of a resource must be made, such allocation
   should be quantified to fulfill the purposes of the treaty, while
   at the same time recognizing the rights of non-Indian harvesters to
   a resource. Thus, the threshold issue is not whether the Bands have
   achieved a moderate standard of living, but what was the purpose
   and intent of the treaty, and what amount of resources are needed
   to fulfill such purpose and intent. Where it is determined that the
   resource cannot meet both the needs of the non-Indians and the
   Bands, an allocation should be made. (144)

Despite this uncertain application, the doctrine has developed into a somewhat reasonable (and not necessarily "unhistorical") method due to it being based on aboriginal oral tradition and archeological evidence. In this way, the intent and purposes of the treaty and the allocation of scarce resources can be achieved in the judicial process. As noted by Mary Christina Wood, the doctrine "seemingly effectuates" a central purpose of many treaties, which was to assure a "viable separatism" between the Indians and non-Indian society. (145) Nevertheless, it remains a limiting and elusive concept perched uneasily between historical exegesis, modem resource constraints and political expediency in U.S. case law. It originated as a limiting factor in order to reduce the tribal take of anadromous fish in the American Pacific Northwest and it does not guarantee the tribes any amount of the treaty guaranteed resources. It explicitly limits tribal resource harvesting to a historically static economic standard. It implicitly incorporates this economic standard into the cultural paradigm as the idea of moderate living has been tied to Indian traditions against over-exploitation and over-harvest of resources.

2. State Jurisdiction over Natural Resource Use and Exercise of Right

Rather than being presumptively pre-empted by federal power (as the courts have held regarding activities within the reservation) the state has limited regulatory authority over federally guaranteed rights exercised outside of the reservation. State regulatory authority is either exercised directly on tribal harvesters or indirectly through management plans to which the state is a party or an observer. (146) Provided state regulation does not discriminate against treaty Indians, federal authority only provides immunity from state law insofar as the off-reservation activities are coincident with otherwise valid state regulation.

The state's continued ability to regulate in the off-reservation context is the result of a different pre-emption approach used in Indian cases coupled with the historic connection between wildlife management and state sovereignty. Preemption analysis in Indian cases has rested on three factors not important in non-Indian pre-emption cases: the context of federal policy and fiduciary considerations (relatively ambiguous factors which the courts have been reluctant to apply in non-Native American cases), the impact of the state regulation on the residual sovereignty of the tribes, and an explicit acknowledgement that the state has varying degrees of regulatory interest based on the type of activity and whether the activity occurs on or off the reservation. (147) In the weighing of the particular federal, state, and tribal interests, the broad construction of federal authority in Indian affairs is somewhat counterbalanced by more broadly construed notion of state authority than would otherwise be found in the more precise statutory construction approaches used elsewhere. (148)

The general acknowledgement of a state interest in Indian pre-emption analysis makes the judicial recognition of state regulatory authority less dependent upon the content and scope of the particular historic agreement reserving the rights. As the Court noted in Puyallup I: "The measure of the legal propriety of [regulations that are to be measured by the conservation necessity standard] is ... distinct from the federal constitutional standard concerning the scope of the police power of a State" (149) To be sure, state regulatory authority is curtailed by the objectives of the treaty participants (e.g. to maintain the ability of the tribe to live off the ceded territory in exchange for the cession) and the precise content of the standards is dependent upon the specific environmental, territorial, and regulatory context, nevertheless the emphasis is not whether or not the state has a right to regulate granted it by the historic agreement. Absent strong historic evidence or textual support supporting complete pre-emption, the right of the state to regulate and the general extent of state regulation is recognized and understood to apply in all present day circumstances--an assumption grounded in state sovereignty and the idea that American negotiators would not have intended to concede the tribal parties exclusive privileges of occupancy in land that was ultimately to be settled or exploited by non-Indians. (150)

Despite the general presumption that the state does have some regulatory authority, the limitations on state authority can nevertheless be substantial. First, the substance of state regulation can only relate to health, safety, and conservation issues. Where the use rights have been extended to include privately held lands, this regulatory authority may not be invoked to limit the time, place, and manner of the treaty rights in order to ameliorate an inequitable impact a treaty use may have on a third party. (151) Second, the manner in which the state regulates off-reservation activities, or the effect state regulations have, must not discriminate against Native Americans exercising their off-reservation rights or favor non-Indian harvesters. (152) A general fee levied equally against Indians and non-Indians which is a charge against an Indian exercising treaty or agreement guaranteed wildlife harvesting is a per se discriminatory state regulation, regardless of whether member of the public must pay the same fee. Finally, the state generally may not impose its own regulations where a tribe has shown that its tribal regulations are adequate to protect the state health, safety, and conservation objectives. (153) As the reserved rights doctrine presumes that the tribe has reserved regulatory authority over its own members, the displacement of state authority has been relatively uncontroversial. However, the administrative capacity of the particular tribe to enforce its regulations as well as the competence of tribal wildlife regulatory authorities to establish appropriate harvest levels has been hotly disputed.

The legal standards used to evaluate state regulation are relatively clear. The state can regulate in the interest of conservation as long as "the regulation meets the appropriate standard and does not discriminate against the Indians." (154) In order for the standard to be "appropriate" the state has the burden of showing that a regulation is necessary and reasonable, and its application to the Native American off-reservation harvest is necessary in order for it to fulfill its reasonable conservation objectives. In this context, a "necessary and reasonable" regulation is necessary when it required for the perpetuation of a species, including a reasonable margin of safety, against extinction of game within a certain territory and is reasonable if it is appropriate to its conservation purpose. (155) Under this "conservation necessity test" equal regulatory (e.g. restricting all gill nets in the fishery) treatment of Indians and non-Indians is generally not permissible because equal treatment will disproportionately burden the smaller off-reservation harvest. (156)

The regulation of public health and safety relating to the usufructuary harvest likewise may be done only if the regulations do not discriminate against the Indians and are "reasonably necessary to prevent or ameliorate a substantial risk to the public health or safety." (157) In order to determinate whether the standards are "reasonable and necessary" the state regulation must meet a four part test. First, the state must show it needs to regulate a particular resource because there is a public health or safety need involving the resource. "This requires a showing by the state that a substantial detriment or hazard to public health or safety exists or is imminent." (158) Second, the state must demonstrate that the proposed regulation is necessary to prevent or improve a public health or safety hazard. (159) Third, in order for the proposed regulation to be applied to guaranteed tribal off-reservation rights, the state must show that it is necessary to effectuate the particular health or safety interest. (150) Finally, "the State must show that its regulation is the least restrictive alternative available to accomplish its health and safety purposes." (161)

G. Extinguishment

1. Aboriginal Title

It is in the extinguishment of aboriginal title that the colonialist impetus behind indigenous law is most evident. Despite the moral and legal obligation to protect Indian lands, natural resources, and tribal governments, the relatively low legal threshold by which aboriginal title may be extinguished is perhaps the most egregious example of the use of law to advance the interests of the European settlers and undermine the continued existence of the tribes. (162) As hunting, fishing, and gathering rights are parasitic on possession of the underlying aboriginal title, extinguishment terminates corresponding use and occupancy rights, including fishing rights, unless those rights are reserved in a treaty, statute or executive order. (163) Extinguishment may be accomplished either directly or by various Congressional actions implying an intention to extinguish aboriginal title. (164) The United States Congress can "extinguish aboriginal title at any time and by any means." Extinguishment may be explicit or implicit but must involve in some sense an exercise of governmental authority adverse to the tribal right of occupancy. (165) The possessing tribe has no right of compensation for the taking of the aboriginal title. (166) The manner, method, and time of such extinguishment raise political, non-justiciable, issues. (167)

2. Treaty Rights or Statutory Agreements

As the LCO / Court observed "aboriginal rights of use enjoy a different legal status than a treaty-recognized rights of use" because of the standard necessary to extinguish treaty rights. Such aboriginal rights of use may only be relinquished by the Indians in a clear and unambiguous manner. At the same time, Congress retains the broad right and ultimately the unilateral power, to abrogate Indian treaties and extinguish Indian rights. However, the courts have held that rights reserved by treaty or statutory agreement may only be extinguished by an unambiguous or clear and plain Congressional action evidencing an intention to extinguish the reserved rights. (168) Without this explicit statutory language, the courts have been extremely reluctant to find congressional abrogation of treaty rights; (169) because such explicit acknowledgement of intent is considered to be "clear evidence" that Congress "actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty." (170) Should the right be relinquished by a signatory tribe by way of a superceding treaty or agreement, the courts similarly require express language to that effect in the document. (171)

The clear and plain standard is not a per se rule which invalidates any Congressional action unless it explicitly abrogates or extinguishes reserved rights. The particular evidence of what constitutes "clear and plain" intent varies on the wording used, the historical circumstances, the legislative history and policy objectives and the conduct of the parties. (172) The Dion Court outlined some of the circumstances where sufficient intent can be found to extinguish reserved rights. It noted that the Court found sufficient intention where Congress had made an "express declaration" of its intent to abrogate treaty rights or where a statute's '"legislative history'" and "'surrounding circumstances'" as well as "'the face of the Act'" indicated sufficient intention. (173) Nevertheless where express language is absent, the court will construe the particular circumstances surrounding the purported extinguishment in light of the protective canons of treaty interpretation. Where ambiguity or uncertainty exists in the legislation, because of contemporaneous actions or statements of federal officials towards the affected or similarly situated tribes, or where the historic context suggests different tribal understandings regarding the purported action are inconsistent with the claimed extinguishment, it is unlikely that the courts will find the right extinguished.

The leading case regarding the extinguishment of hunting, fishing, and gathering rights under a treaty is Menominee Tribe of Indians v. United States. (174) In Menominee the tribe argued that the Menominee Termination Act of 1954 which provided for the termination of federal supervision over the property and members of the tribe did not extinguish their hunting, fishing and gathering rights within their former reservation established by an 1854 Treaty. (175) The United States Supreme Court held that the hunting, fishing, and gathering rights within the reservation had not been extinguished. Douglas, J. writing for the Court observed that the 1954 Termination Act was enacted only two months after a statute, Public Law 280, had granted Wisconsin and other states jurisdiction "over offenses committed by or against Indians" on the reservation. (176) This bill "came out of the same committees" in the Senate and House as the Termination Act. (177) Douglas, J. noted that Public Law 280 stated that:

   Nothing in this section ... shall deprive any Indian or any Indian
   tribe, band, or community of any right, privilege, or immunity
   afforded under Federal treaty, agreement, or statute with respect
   to hunting, trapping, or fishing or the control, licensing, or
   regulation thereof. (178)

Reading the two statutes together Justice Douglas held that the while the Termination Act ended the relationship that the Menominee had with the federal government, Public Law 280 specifically contemplated continued hunting, fishing, and gathering by the Menominee. It observed that:

   [T]o construe the Termination Act as a backhanded way of abrogating
   the hunting and fishing rights of these Indians. While the power to
   abrogate those rights exists "the intention to abrogate or modify a
   treaty is not to be lightly imputed to the Congress." (179)

The Menominee continued to hold their treaty reserved hunting, fishing and gathering rights.

The relatively clear standard established by the Menominee Court was extended by the United States Supreme Court in Mille Lacs, which eviscerated the use of the equal footing doctrine to extinguish treaty rights. Beside finding that Congress had not exhibited the requisite clear and express intention to revoke the rights guaranteed under the 1837 and 1842 treaties, the Mille Lacs Court eliminated the possibility that usufructuary rights could be revoked by implication under the equal footing doctrine. The equal footing doctrine, as understood in Ward v. Race Horse (180), held that treaty rights (or treaty "privileges") which are "temporary and precarious" will be necessarily extinguished upon statehood. The bare reservation of Indian rights and the concomitant limitation of state regulatory authority are, without explicit mention in the statehood act, simply inconsistent with state sovereignty. More permanent treaty rights, that is, those rights that are "perpetual" on the face of the treaty, survive statehood and can only be extinguished by an explicit act of Congress. (181) As mentioned above, O'Connor, J. noted that the distinction between "temporary and precarious" treaty rights and those rights which are "of such a nature as to imply their perpetuity" was simply too broad because "any right created by operation of federal law could be described as "temporary and precarious," as

Congress could "eliminate the right whenever it wished." (182) Chief Justice Rehnquist objected to the majority's reasoning, stating that it was an "overruling sub silentio of a precedent [Race Horse] of 103 years' vintage." (183) He argued that Race Horse precedent clearly was applicable to the 1837 and 1842 rights because the rights had been only guaranteed during the pleasure of the President.
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Title Annotation:I. Introduction through II. The American Doctrine of Off-Reservation Hunting, Fishing and Gathering Rights, p. 68-117
Author:Charlton, Guy
Publication:Canada-United States Law Journal
Date:Jan 1, 2015
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