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

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

Emphasis on the idea that sec. 35 rights are "aboriginal" colors the entire analysis used to determine the nature and extent of protected hunting, fishing, and gathering rights. "Aboriginal rights cannot ... be defined on the basis of the philosophical precepts of the liberal enlightenment ... They arise from the fact that aboriginal people are aboriginal." Because these rights are held collectively by a group and flow from the pre-existing possession and use of the territory prior "to the arrival of Europeans" and, at the same time, must be reconciled with the assertion of British sovereignty, the rights themselves are circumscribed by judicial understandings of what traditional aboriginal practices and traditions involve. In light of this basic premise, which implicitly contrasts aboriginal rights to those of the "liberal enlightenment," rights and duties are given content. (285)

Thus, aboriginal rights must be specifically framed and historically grounded rather than conceptualized in a broad or universal manner. (286) This framing is the "necessary specificity, which comes from granting special constitutional protection to one part of Canadian society." (287)

1. Aboriginal Title

Until R. v. Adams and R. v. Cote a judicial finding that the claimant group held aboriginal title over a territory was considered necessary in order for there to be aboriginal rights to hunt, fish, and gather. At present, the courts consider aboriginal title to be "simply one manifestation of a broader-based conception of aboriginal rights." (288) Since those decisions however, aboriginal groups have continued to make claims that various usafructuary uses are permitted because they hold unsurrendered aboriginal title to the land they occupied at the time the British asserted sovereignty in their territory. These aboriginal title claims are claims to land and the various usufructuary rights practiced are parasitic on the underlying title.

"[A]boriginal title exists when the bundle of aboriginal rights is large enough to command the recognition of a sui generis proprietary interest to occupy and use the land." (289) It is a right of use and occupation prior to the assertion of British sovereignty, is held communally, and it is inalienable except to the Crown. It is more than the right to engage in a set of specific practices and is characterized as an interest in land itself. The interest is sui generis because it "cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal systems." (290) Aboriginal title pre-dates and survives the assertion of British sovereignty and provides the aboriginals who occupied the particular territory "the full benefit of the land, including subsurface and any non-precious metals contained therein." (291)

The characterization of aboriginal title as a form of "inalienable fee simple" is reflected in the seminal Indian law cases of American Chief Justice John Marshall in the early 19th century. This line of cases embraced the notion that tribal occupancy rights provided the tribe with full use of the soil and enabled the tribe to the use the territory as they thought appropriate. (292) From this perspective, the only difference between a fee simple estate and common law aboriginal title is that individual settlers, by common law and legislation, were prevented from purchasing aboriginal titled land. (293) In Delgamuukw, however, the Supreme Court of Canada conceptualized aboriginal title differently. For the Delgamuukw Court:

   [T]he content of aboriginal title can be summarized by two
   propositions: first, that aboriginal title encompasses the right to
   exclusive use and occupation of the land held pursuant to that
   title for a variety of purposes, which need not be aspects of those
   aboriginal practices, customs and traditions which are integral to
   distinctive aboriginal cultures; and second, that those protected
   uses must not be irreconcilable with the nature of the group's
   attachment to that land. (294)

The historic aboriginal occupation and use of a particular territory is reconciled with the core common law conceptions of occupancy and title. (295) This reconciliation process "must be sensitive to the context-specific nature of common law title, as well as the aboriginal perspective." (296) "Absolute congruity is not required, so long as the practices engage the core idea of the modern right." (297)

From a common law perspective, the content of occupation and use as well as customary law covering the claimed activity, and the extent to which it can be reconciled with the common law, is dependent upon the tribal particular culture, demography, natural resources, and the existence and nature of a land tenure system. As one source of aboriginal title is occupancy, use and possession under tribal law, the appropriate time period to examine the aboriginal perspective is at the time the British asserted sovereignty rather than the pre-contact period (as in the case of other aboriginal rights). (298) In short, an aboriginal group cannot claim aboriginal title to territory they did not possess at the time the British asserted their sovereignty and radical title to the area.

Two core common law factors are considered important. First, the court must determine whether the tribal occupation is sufficient to ground title. Occupancy may be established in many different ways; from the building of dwellings, planting fields, or by using specific territory for hunting and fishing, or otherwise exploiting various resources. The legal character of the occupation is based on the aboriginal societies' traditional way of life. This will vary among tribes and be dependent upon a "group's size, manner of life, material resources, and technological abilities, and the character of the lands claimed". (299) As noted, the land must be occupied prior to British sovereignty. In addition, if present occupancy is used as evidence of historic occupancy there must be continuity between the present and pre-sovereignty occupation. (300) Second, the occupancy must be exclusive at the time of sovereignty. In Marshall III, McLachlin, C.J., writing for the majority, set forth the criteria necessary to sufficient exclusive occupancy to prove aboriginal title:

   [E]xclusive possession in the sense of intention and capacity to
   control is required to establish aboriginal title. Typically, this
   is established by showing regular occupancy or use of definite
   tracts of land for hunting, fishing or exploiting resources. Less
   intensive uses may give rise to different rights. The requirement
   of physical occupation must be generously interpreted taking into
   account both the aboriginal perspective and the perspective of the
   common law. These principles apply to nomadic and semi-nomadic
   aboriginal groups; the right in each case depends on what the
   evidence establishes ... The ultimate goal is to translate the
   pre-sovereignty aboriginal right to a modern common law right. This
   must be approached with sensitivity to the aboriginal perspective
   as well as fidelity to the common law concepts involved. (301)

If an aboriginal group cannot show that it occupied and used a particular territory exclusively, it could still assert a claim for an aboriginal right to engage in certain activities on the territory.

Lamer, C.J., who authored the majority opinion in Delgamuukw, insisted that aboriginal title was not equivalent to a usufructuary right to engage in traditional aboriginal practices:

   Despite the fact that the jurisprudence on aboriginal title is
   somewhat underdeveloped, it is clear that the uses to which lands
   held pursuant to aboriginal title can be put is not restricted to
   the practices, customs and traditions of aboriginal peoples
   integral to distinctive aboriginal cultures. (302)

On the surface the approach is a marked departure from earlier jurisprudence which conflated aboriginal title and aboriginal rights such that "that aboriginal title was often considered to be no more that a bundle of rights to engage in traditional activities that were also considered aboriginal rights." (303) However, upon closer analysis there seems to be little difference between an aboriginal rights claim and an aboriginal title claim. While Lamer C.J.'s discussion departs in some sense from precedent, it remains consistent with the underlying principles of previous case-law. This earlier case law equated the content of aboriginal title with the use of the territory for traditional hunting, fishing and gathering activities.

The conflation of the doctrine of aboriginal title and the doctrine of aboriginal rights is evident in St. Catherine's Milling and Lumbering Co. There Lord Watson, while declining to ascertain the "precise quality of the Indian right" did find that aboriginal title was not fee simple (as posited under the doctrine of common law aboriginal title). Otherwise the decision would have been in favor if the Dominion. (304) Rather, "the tenure of the Indians was a personal and usufructuary right" as recognized by the Proclamation of 1763. Such tenure was simply a burden upon the Crown's underlying proprietary title. In the circumstances, the "usufruct" that composed the aboriginal right was described by the Proclamation, which characterized the reserved aboriginal lands as "hunting grounds."

Lord Watson's conflation of aboriginal title and aboriginal rights, which then consisted of various traditional use rights, is even more evident in Strong, J.'s earlier dissent when the case was before the Supreme Court of Canada:

   [I]n reference to Indian habits and modes of life and the hunting
   grounds of the tribes were as much in their actual occupation as
   the cleared fields of the whites, and this was the tenure of Indian
   lands by the laws of all the colonies. (305)

In either case, the mutually generative characterization of aboriginal title and aboriginal rights seemingly precludes any ownership or activity that is inconsistent with traditional subsistence activities.

The usufructuary nature of aboriginal title and the equation of it with aboriginal rights to hunt, fishing, gather and other traditional activities evident in St. Catherine's Milling and Lumbering Co., has become an underlying premise of aboriginal jurisprudence. 306 Lord Duff, writing in the 1921 "Star Chrome" case, emphasizes this aspect of aboriginal title:

   While the language of the statute of 1850 undoubtedly imports a
   legislative acknowledgment of a right inherent in the Indians to
   enjoy the lands appropriated to their use under the superintendence
   and management of the Commissioner of Indian Lands, their Lordships
   think the contention of the Province to be well founded to this
   extent, that the right recognized by the statute is a usufructuary
   right only and a personal right in the sense that it is in its
   nature inalienable except by surrender to the Crown. (307)

The legal concepts of title and usufruct were conceptually distinct, but in practice merged. Aboriginal title was either defined as a "burden" on the Crown's interest, which was subsequently extinguished by treaty or legislation, or was defined as an aboriginal right to traditionally harvest various natural resources. The reasoning of McGillivray, J. A in R. v. Wesley is indicative of the pragmatic melding of the two concepts:

It is thus clear that whether it be called a title, an interest, or a burden on the Crown's title, the Indians are conceded to have obtained definite rights under this proclamation in the territories therein mentioned which certainly included the right to hunt and fish at will all over those lands in which they held such interest. (308)

The idea that aboriginal title gave rise to traditional natural resource gathering rights fit well in the jurisprudence, even in those areas that arguably had un-extinguished aboriginal title such as British Columbia. It also reflected political reality. By generally treating aboriginal title and aboriginal rights as mutually constitutive, the courts avoided any discussion of whether the holder of unextinguished aboriginal title has the right "to use it [the land] according to their own discretion." (309) Indeed, until the 1973 Calder decision there was no substantive discussion of aboriginal title in the case law. (310)

However, the idea that aboriginal title could have meaning apart from aboriginal rights was revived in R. v. Adams. Adams disentangled aboriginal title from aboriginal rights as a legal basis for traditional harvest activities.311 Adams, a Mohawk, was charged with fishing without a license on Lake St. Francis, a section of the St. Lawrence River. He challenged his conviction on the basis that he was exercising an aboriginal right to fish protected by sec. 35. Lamer, C.J., for the Supreme Court of Canada, noted that the Mohawk could not sustain a claim for aboriginal title because their occupation and use of the land and the fishing resource on Lake St. Francis was itinerate. "[T]he Mohawks did not settle exclusively in one location either before or after contact with Europeans." (312) Nevertheless, the Mohawk defendant could maintain an aboriginal rights claim because the courts must look at both the relationship of an aboriginal claimant to the land and at the traditions, customs and traditions arising from the claimant's distinctive culture and society. Lamer, C.J., noted that while aboriginal title "falls within the conceptual framework of aboriginal rights", a claim for aboriginal rights does "not exist solely where a claim to aboriginal title" is asserted to the court. Thus:

   Where an aboriginal group has shown that a particular activity,
   custom or tradition taking place on the land was integral to the
   distinctive culture of that group then, even if they have not shown
   that their occupation and use of the land was sufficient to support
   a claim of title to the land, they will have demonstrated that they
   have an aboriginal right to engage in that practice, custom or
   tradition. (313)

In that instance, the Court held that the Mohawk have an aboriginal right to fish in Lake St. Francis.

In Delgamuukw v. British Columbia the Court elaborated on the nature and extent of aboriginal title. (314) Lamer, C.J. held that "aboriginal title encompasses the right to exclusive use and occupation of the land held ... for a variety of purposes." These purposes do not need be "aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures" nor need they be tied to aboriginal rights per se. Lamer, C.J. pointed out that the exploitation of mineral rights underneath land on which the tribe holds aboriginal title is an example of a non-traditional use. The Court, however, limited the notion of the tribal owner's absolute discretion to determine land uses by holding "that those protected uses must not be irreconcilable with the nature of the group's attachment to that land." (315) In short, aboriginal title is not a "normal" proprietary interest but imposes an inherent sui generis limitation on land use. (316) Any use that is "irreconcilable" with the group attachment to the land is not a property right.

The Court explained the inherent limit by stating that aboriginal title was premised on the pre-existing occupation of territory. "Implicit in the protection of historic patterns of occupation is recognition of the importance of the continuity of the relationship of an aboriginal community to its land over time." (317) In order for the relationship to continue into the future "uses of the lands that would threaten that future relationship are, by their very nature, excluded from the content of aboriginal title." (318)

"[L]ands subject to aboriginal title cannot be put to such uses as may be irreconcilable with the nature of the occupation of that land and the relationship that the particular group has had with the land which together have given rise to aboriginal title in the first place." (319)

Not surprisingly given the history discussed above, the inherent limitation on the use of the territory, which emphasizes that the extent that aboriginal title is the embodiment of certain practices, customs and traditions, undermines the idea that aboriginal title is an interest in property apart from these practices. As the Court stated in Osoyoos Indian Band.

   The aboriginal interest in land will generally have an important
   cultural component that reflects the relationship between an
   aboriginal community and the land and the inherent and unique value
   in the land itself which is enjoyed by the community. (320)

The sui generis interest is culturally bound, which may exclude resource harvesting for commercial purposes or commodification of various uses, as these types of uses may interfere with the on-going relationship to the land. (321) From this point of view, despite Lamer, C.J.'s claim that aboriginal title is "not restricted to the practices, customs and traditions of aboriginal peoples", the concept remains firmly tied to specific traditional practices for the present.

2. Aboriginal Rights

The Supreme Court has stated that aboriginal rights are not general and universal and that their scope and content must be determined on a case-by-case basis:

   [A]boriginal rights are highly fact specific--the existence of an
   aboriginal right is determined through consideration of the
   particular distinctive culture, and hence of the specific
   practices, customs and traditions, of the aboriginal group claiming
   the right. The rights recognized and affirmed by s. 35(1) are not
   rights held uniformly by all aboriginal peoples in Canada; the
   nature and existence of aboriginal rights vary in accordance with
   the variety of aboriginal cultures and traditions which exist in
   this country. (322)

Despite this emphasis on the fact-specific nature of aboriginal rights, the Court has laid out a comprehensive analytic framework to determine the existence and content of aboriginal rights under sec. 35. In practice, applying the framework has been problematic since the categories of analysis are somewhat abstract.

The Supreme Court of Canada outlined the approach to be used to determine the existence and the content of an aboriginal right in the 1996 case, R. v. Van der Peet. (323) Van der Peet concerned the sale of 10 salmon caught under an Indian food license issued by British Columbia to the aboriginal defendant under federal regulations. Lamer, C.J., writing for the Court, began by noting that the doctrine of aboriginal rights has arisen because "when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries." (324) The rights that are protected are those activities that have an element "of a custom, practice or tradition" which is "integral to the distinctive culture" of the group claiming the aboriginal right. The determination of what is integral and distinctive is dependent on the perspective of the aboriginal people themselves, but the activity must be of central significance to the particular group. In addition, the perspective needs to be framed in terms that are "cognizable to the Canadian legal and constitutional structure." (325) Finally, the activity must be an activity that was integral prior to the arrival of the Europeans and which has continuity with present day activities. (326)

The Van der Peet Court outlined a two-step analysis to determine the existence of the right. First, the court must "identify the nature of the right being claimed." (327) Second, once the court has determined the precise nature of the claimed right, it must determine if an activity is "an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right." (328)

The two-step approach in Van der Peet can be disaggregated and has been modified by subsequent jurisprudence so that the analysis encompasses five separate steps. (329) First, the court must identify the "true nature of the claim". (330) The characterization of the right is crucial to whether the claimed activity is a protected right. The characterization must not be general but be determined in light of the specific context of the alleged activity and the aboriginal community. It must not be artificially broadened or narrowed to achieve a desired outcome. (331)

The factors that need to be considered are: the nature of the action claimed to be an aboriginal right, the nature of the governmental action claimed to infringe the right and the ancestral traditions, and practices relied upon to establish the right. (312) An aboriginal right may not be characterized as a right to harvest a specific species (such as salmon, moose, or maple) nor can it be characterized by the harvesting method that is used since such characterization is too specific or characterizes the right in a non-evolutionary historicist fashion.

Second, it is necessary for the court to determine whether the claimed right has a site-specific component. As Lamer, C.J. observed in Delgamuukw, "aboriginal rights ... fall along a spectrum with respect to their degree of connection with the land." (333) Most aboriginal rights claims have some geographical element even though a claim having a geographical component is not dependent upon a prior finding of aboriginal title by the court:

   [A] protected aboriginal right falling short of aboriginal title
   may nonetheless have an important link to the land. An aboriginal
   practice, custom or tradition entitled to protection as an
   aboriginal right will frequently be limited to a specific territory
   or location, depending on the actual pattern of exercise of such an
   activity prior to contact. As such, an aboriginal right will often
   be defined in site-specific terms, with the result that it can only
   be exercised upon a specific tract of land. (334)

A claimed right may be quite site-specific and can only be exercised at a particular place. These rights often involve religious and ceremonial activities. The relevance of geography in hunting or fishing cases is more determinative because the activities are "inherently tied to the land" as compared with "more free-ranging rights, such as the general right to trade...." (335)

Third, the court must determine whether the practice existed prior to contact with Europeans. As Lamer, C.J noted in R. v. Van der Peet:

The fact that Europeans in North America engaged in the same practices, customs or traditions as those under which an aboriginal right is claimed will only be relevant to the aboriginal claim if the practice, custom or tradition in question can only be said to exist because of the influence of European culture. If the practice, custom or tradition was an integral part of the aboriginal community's culture prior to contact with Europeans, the fact that that practice, custom or tradition continued after the arrival of Europeans, and adapted in response to their arrival, is not relevant to determination of the claim; European arrival and influence cannot be used to deprive an aboriginal group of an otherwise valid claim to an aboriginal right. On the other hand, where the practice, custom or tradition arose solely as a response to European influences then that practice, custom or tradition will not meet the standard for recognition of an aboriginal right. (336)

Evidence of pre-contact activity must be "clearly demonstrated" by oral histories and archeological evidence. The evidentiary value of oral histories must not contravene the fundamental principles of evidence law that directs the court to value evidence according to "general principles of common sense." (337)

Fourth, if the evidence establishes that an ancestral practice existed prior to contact, the court must determine whether that practice was integral to the distinctive culture of the particular community claiming the right. The idea that the practice must be integral to a particular culture lies at the heart of the Supreme Court's characterization of an aboriginal right. "To recognize and affirm," writes Lamer, C.J. in Van der Peet, "the prior occupation of Canada by distinctive societies it is to what makes those societies distinctive that the court must look in identifying aboriginal rights." (338)

For an activity to be integral to the distinctive culture it must be a central and significant part of the particular aboriginal society. This does not mean that the claimed activity need be done only in that culture. Rather, it means that if the activity was not undertaken by the group, its culture would be fundamentally changed. (339) The significance of the activity (and the nature the society as altered by the absence of the activity) is understood from the perspective of the aboriginals themselves as well as using ethnological, archeological and historical data:

   The practice, custom or tradition must have been "integral to the
   distinctive culture" of the aboriginal peoples, in the sense that
   it distinguished or characterized their traditional culture and lay
   at the core of the peoples' identity. It must be a "defining
   feature" of the aboriginal society, such that the culture would be
   "fundamentally altered" without it. It must be a feature of
   "central significance" to the peoples' culture, one that "truly
   made the society what it was". This excludes practices, traditions
   and customs that are only marginal or incidental to the aboriginal
   society's cultural identity, and emphasizes practices, traditions
   and customs that are vital to the life, culture and identity of the
   aboriginal society in question. (340)

Fifth, the claimant must establish continuity between the practice that existed prior to contact with Europeans and the practice as it exists today. "[A]n aboriginal claimant must prove a modern practice, tradition or custom that has a reasonable degree of continuity with the practices, traditions or customs that existed prior to contact." (341) Continuity, however, may be shown where an historical practice evolved into a modern day practice. It is permissible for the practice to have evolved over time and a historical pre-contact practice may find a modern expression.

The Van der Peet integral-to-a-distinctive-culture approach is less a distillation of the case law, statutes and regulations regarding the existence and content of aboriginal rights than a free standing conceptual approach. It has been extensively critiqued. First, it emphasizes pre-contact culture and perceptions and evaluates what is "significant" in that culture by the claimant aboriginal group and the court. As Justice McLachlin said in Mitchell "[c]ultural identity is a subjective matter and not easily discerned...." (342) An evaluation of the historic significance and perceptions of the significance of that activity increases the difficulty of this analysis. (343) Second, the emphasis on tradition and traditional activities tends to restrict the scope of the rights. The evolution of activities within a cultural framework closes off any activities whose "meaning" cannot be embedded within the court's construction of a particular culture's understanding of that activity. Given that the cultural framework must be considered more or less static, new activities having "new" meanings are circumscribed. Third, a particularized, culturally based concept of aboriginal rights is more easily derogated when weighed against politically or philosophically premised rights of the non-aboriginal community. For example, in Gladstone, where the Court found that the Heiltsuk people had a free standing commercial right to harvest herring spawn on kelp, it limited the right to a "priority" and held that the harvest could be limited "by objectives [that] are in the interest of all Canadians." (344)

3. Treaty Rights

"Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty, and to define Aboriginal rights guaranteed by s. 35 of the Constitution Act, 1982." (345). The determination of the legal nature of the treaty is dependent upon how the treaty agreement is initially characterized in law--be it in international law, domestic law, aboriginal customary law, a mixture of European and aboriginal law, or natural law--and the juridical nature of the signatory tribe. Recently, case law has analogized treaties to both private contracts and international agreements. The Court in R. v. Sioui noted that "A treaty with the Indians is unique, that it is an agreement sui generis which is neither created nor terminated according to the rules of international law." (346) In Marshall I, Binnie J. applied contract law principles to find that a truckhouse clause provided a right to trade. (347) Whether rooted in international law or in contract, treaties between aboriginal peoples and the British Crown are a distinctive type of agreement which require additional interpretive principles. (348) The rights retained by a tribe under a treaty depend upon the particular treaty terms, as determined by the treaty text and the historical context. (349) Unlike aboriginal rights, whose content depends on a judicial examination of pre-contact practices, where the aboriginal activities are covered by a treaty are they those exercised at the time of the agreement:

   [W]hen considering a treaty, a court must take into account the
   context in which the treaties were negotiated, concluded and
   committed to writing. The treaties, as written documents, recorded
   an agreement that had already been reached orally and they did not
   always record the full extent of the oral agreement. (350)

Treaty jurisprudence and the canons of construction emphasizes that the meaning of treaty terms is based on a judicial determination of the mutual understandings embodied in the agreement. As the treaty text was negotiated in a cross-cultural environment, the courts have determined that the text and agreement should be understood in a manner that is consistent with the tribal understandings of the mutual agreement. However "[t]he interpretation of the treaty must be realistic and reflect the intentions of both parties, not just that of the [First Nation]." (351) This emphasis on the specific factual circumstances of the treaty process has led to the development of extensive principles and interpretive methodologies. (352) First, treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favor of the tribes. (353) Second, the court must be sensitive to the different cultural and linguistic characteristics of the tribes and the British or Canadian negotiators and the impact these different factors can have in determining the content of their agreement. (354) Third, the objective of treaty interpretation is "is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed." (355) Fourth, the honour of the crown is presumed. (356) Fifth, the treaty words need to be given the meaning that they would have held for the parties at the time of signing, and technical or legalistic interpretations should be avoided. (357) When interpreting treaty terms, a generous construction cannot alter the terms of the treaty or stretch the language beyond what is realistic. Sixth, the rights embodied in a treaty should not be interpreted in a "static or rigid way." The court must construe the retained rights so that they can be exercised in a modern way. (358)

An evaluation of the tribal negotiating position from an historic review of the cultural and economic practices at the time the treaty was signed is an important aspect to be considered in determining the intent of the parties. However, as part of 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. This is similar to the judicial conflation of aboriginal title with historic aboriginal usages and practices discussed above. These judicially constructed indigenous understandings, which presume a relatively unsophisticated negotiating posture, are seemingly immutable in content, place, and time and are paradoxically shared across all aboriginal cultures. Tribes only negotiate to reserve specific traditional cultural practices. Where the issue is commercial exploitation, be it 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 treaty terms--the tribes only wish to hunt, fish and gather like they have always done.

The most recent example of this reasoning is in the Marshall III decision. In Marshall III, the Supreme Court of Canada's characterization of the treaty right in the 1999 Marshall II rehearing left little room for the argument that commercial logging was an evolution of the Mi'kmaq people's commercial uses of wood in the 18th century. The Marshall II Court essentially limited the scope of the treaty right to the historically understood contemplation of the parties:

   The word "gathering" in the September 17, 1999 majority judgment
   was used in connection with the types of the resources
   traditionally "gathered" in an aboriginal economy and which were
   thus reasonably in the contemplation of the parties to the 1760-61
   treaties. While treaty rights are capable of evolution within
   limits, as discussed below, their subject matter (absent a new
   agreement) cannot be wholly transformed. (359)

The uses that "cannot be wholly transformed" are the "traditional" uses of a particular resource found in the culture and society of the signatory tribe. In Marshall III, McLachlin, C.J. noted with approval the statement by the trial court concerning the difference between present day logging and the Mi'kmaq's historic use of the Acadian trees:

   Logging was not a traditional Mi'kmaq activity. Rather, it was a
   European activity, in which the Mi'kmaq began to participate only
   decades after the treaties of 1760-61. If anything, the evidence
   suggests that logging was inimical to the Mi'kmaq's traditional way
   of life, interfering with fishing which, as found in Marshall 1,
   was a traditional activity. (360)

McLachlin, C.J. suggests logging was not only a non-traditional use, but that it also interfered with other uses and management practices of the Mi'kmaq that were "traditional." This reinforces the conclusion that logging is not within the scope of the treaty right and that the treaty would only reserve uses that are traditionally aboriginal as understood by the Court. As LeBel, J. in his concurrence notes:

   [T]here was some evidence before the New Brunswick courts that
   logging may even have interfered with the Mi'kmaq's traditional
   activities, such as salmon fishing, at or around the time the
   treaties were made. With respect to stories from Mi'kmaq oral
   history from after 1763, Chief Augustine testified that:

      the stories were mostly about British people coming in and
   cutting timber, cutting large big trees and moving them down the
   river systems and clogging up the rivers, I guess, with bark and
   remnants of debris from cutting up lumber. And this didn't allow
   the salmon to go up the rivers ...

      Given this evidence, it is doubtful that the right of access to
   forest resources for trade would be for the purpose of engaging in
   logging and similar resource exploitation activities. (361)

Under these circumstances, where logging is not a traditional activity and actually interfered with other traditional activities, trade in commercial timber could not be a treaty protected right. LeBel, J. concluded:

   Trade in logging is not the modern equivalent or a logical evolution
   of Mi'kmaq use of forest resources in daily life in 1760 even if
   those resources sometimes were traded. Commercial logging does not
   bear the same relation to the traditional limited use of forest
   products as fishing for eels today bears to fishing for eels or any
   other species in 1760.... Whatever rights the defendants have to
   trade in forest products are far narrower than the activities which
   gave rise to these charges. (362)

An obverse judicial assumption operates when the courts construe the intent of the British and Canadian negotiators. In this case, the courts assume that the Crown was negotiating for the unimpeded settlement and economic exploitation of the area. The scope of their treaty rights however, 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 state jurisdiction to an area over which it had asserted a pre-existing claim of imperium. The non-aboriginal negotiators' historically situated specific intent, such as their intention to preserve peace and their military position through subsidized trade with former enemies in Marshall I, II, and III--is not a limiting factor in determining the extent of their treaty bargain. Non-aboriginal negotiators 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 aboriginals is essentially the same.

The effect of construing the non-aboriginal and aboriginal intent in this manner is that the doctrine of reserved rights does not exist in Canadian treaty law. The U.S. doctrine of reserved rights is premised on the idea that a treaty is not as a "grant of rights to the Indians, but a grant of rights from them--a reservation of those granted." (363) The judicial construction assumes the prior defeasance of tribal property and sovereign interests before the treaty was negotiated. This in turn reinforces the narrowness of the rights reserved. The assumption is one way in which treaty jurisprudence remained couched within a legal framework that, in the words of American Chief Justice John Marshall "impairs" and "necessarily" diminishes the right of the original inhabitants of North America. (364) The result is that treaty provisions and judicial methodologies used to interpret the treaty can only intrude a little upon the sovereign claims of the settler state. They cannot reserve or create property interests incompatible with or exclusive of non-aboriginal rights to occupy and use the territory unless the tribes did the activity concretely as part of their historic occupancy of the territory.

F. Regulation and Limitations of the Right

1. Justification Analysis

Hunting, fishing, and gathering rights may be regulated for a variety of reasons. In all cases, the federal and provincial regulation of an aboriginal or treaty right must done in accordance with the criteria set down in R. v. Sparrow. (365) Sparrow concerned aboriginal rights, but the Supreme Court of Canada later extended the same approach to treaty rights in R. v. Badger. (366)

Sparrow outlined various principles for balancing the constitutionally protected aboriginal right to fish for food against the federal/provincial power to pass laws to regulate the resource. The dispute involved an aboriginal from Musqueam Band who fished with a drift net longer than that permitted by his aboriginal food fishing license issued by British Columbia. (367) Sparrow argued that he was exercising an aboriginal right to fish and the drift net requirement was inconsistent with sec. 35(1) of the Constitution Act, 1982. The Crown argued that the aboriginal right claimed by Sparrow had been extinguished due to extensive resource regulation "where the sovereign authority is exercised in a manner "necessarily inconsistent" with the continued enjoyment of aboriginal rights." (368) It also argued that if the aboriginal right continued to exist, the aboriginal resource use could nevertheless be regulated in the public interest or to ensure the proper management and conservation of the resource.

The Supreme Court of Canada, in considering Sparrow's immunity claims, interpreted the meaning of "existing" aboriginal rights as well as the impact of sec. 35(1) of the Constitution Act, 1982 on the ability of the federal and provincial governments to regulate aboriginal rights. The Court held that the word "existing" means those aboriginal and treaty rights which were unextinguished on April 17, 1982 (the day the Constitution Act, 1982 took effect). These constitutionally guaranteed rights were not limited to those uses or necessarily subject to regulations that were in effect in 1982. Rather the rights "must be interpreted flexibly so as to permit their evolution over time" in a manner that would preclude the "freezing" of the particular historical use or the regulatory regime in existence in 1982. (369) "The Musqueam have always fished for reasons connected to their cultural and physical survival ... the right to do so may be exercised in a contemporary manner." (370) Moreover, the aboriginal rights could not be extinguished by extensive regulation. Rather the Court stated, "The test of extinguishment to be adopted, in our opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an aboriginal right." (371)

Once the aboriginal right had been established, the Court then proceeded to outline how to determine whether a particular regulatory scheme was inconsistent with sec. 35(1). "The first question to be asked is whether the legislation in question has the effect of interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie infringement of s. 35(1)." The Court held that the burden of proving a prima facie infringement lies on those challenging the legislation. If a prima facie interference is found, the infringement must be justified. For the Court the justification analysis needed to consider the legislative objective of the regulation. If the objective is not valid, the regulation would be impermissible. The Court determined that an infringement based on conservation and resource management is legitimate and justifiable provided that aboriginal uses have a priority in the allowed resource allocation. In Marshall I the Court found that regulation schemes which provide absolute discretion to the minister that would affect an aboriginal right, or give no direction to the Minister to exercise his or her authority, were unjustifiable: (372)

   In light of the Crown's unique fiduciary obligations towards
   aboriginal peoples, Parliament may not simply adopt an unstructured
   discretionary administrative regime which risks infringing
   aboriginal rights in a substantial number of applications in the
   absence of some explicit guidance. If a statute confers an
   administrative discretion which may carry significant consequences
   for the exercise of an aboriginal right, the statute or its
   delegate regulations must outline specific criteria for the
   granting or refusal of that discretion which seek to accommodate
   the existence of aboriginal rights. In the absence of such specific
   guidance, the statute will fail to provide representatives of the
   Crown with sufficient directives to fulfil their fiduciary duties,
   and the statute will be found to represent an infringement of
   aboriginal rights under the Sparrow test. (373)

This analysis must also include consideration of the "Honour of the Crown" interpretive principle which, in effect, raises the burden on the Crown to prove that the regulation is a justifiable infringement on the aboriginal right. (374)

2. The Cultural Limitation on Exploitation of Usufructuary Rights

Another aspect of the traditional assumption mentioned above is the determination that the usufructuary harvest is subject to an internal cultural limitation. The harvest of natural resources is limited to what the Supreme Court of Canada calls a "moderate livelihood" or for "necessaries." (375) The limitation is either inferred by a judicial examination of tribal custom and/or it is assumed that maintaining this cultural limitation was the intention of tribal negotiators when the treaty was negotiated.

The courts have found that this culturally circumscribed level of exploitation was the intent of aboriginal negotiators when they reserved various usufructuary rights. It effectively precludes any resource exploitation for commercial purposes beyond the level needed to generate enough income to provide for necessary products that could not be obtained from the territory. The harvest for personal use only sustains the tribal member and his family. The harvest for commercial trade is similarly limited. The cultural-derived intent of the tribal negotiators is construed such that the commercial use itself is limited by the cultural exploitative practices based on a subsistence economy. For the courts, traditional activity is always for subsistence purposes.

The judicially constructed notion of traditional use and low exploitation is apparent in the Marshall I, where the Court stated "[i]n this case, equally, it is not suggested that Mi'kmaq trade historically generated 'wealth which would exceed a sustenance lifestyle.' Nor would anything more have been contemplated by the parties in 1760." (376)

In short, the aboriginals were not infected with the desire to accumulate wealth. The tribes would have no need to exploit a resource, for subsistence or for trade, in a manner beyond personal use. (377)

There has been a judicial awareness that in specific circumstances an aboriginal right to commercially exploit natural resources could exist apart from the need for food. In Jack v. The Queen, Dickson, J. noted that the 1871 Terms of Union under which British Columbia entered the Canadian Confederation implied a commercial and subsistence aboriginal fishery. (378) At the time the issue simply did not receive any sustained consideration by the courts or policymakers. The vast land area and lack of population pressure allowed for the continued use of natural resources by the tribes without the same political pressures to curb resource use. National policy prior and throughout the treaty period encouraged the continued use of natural resources for subsistence purposes. (379) The subsistence policy was consistent with perceived aboriginal needs and the conceptions of property that they brought to the treaty process. In addition, the treaties signed by both the British and Canadian governments were generally limited by their terms and in their historic contexts to subsistence activities. In the Prairie provinces where treaties could often be construed as providing for commercial harvest, the treaty rights were transformed without re-negotiation into subsistence rights when the federal government turned over its Crown lands to the provinces. These Natural Resource Transfer Acts explicitly limited aboriginal hunting, fishing, and gathering activities on land outside the reserves to the procurement of "food." Finally, prior to the Constitution Act, 1982 many treaty rights were unenforceable at law or simply extinguished by legislation and the establishment of inconsistent uses by non-aboriginals.

The result was that despite the acknowledgement of a commercial aspect to aboriginal and treaty rights, the emphasis was on the exercise of usufructuary rights for subsistence purpose McGillivay, J.A. exploring the rights of the tribes under the 1930 Natural Resource Transfer Act reflects this bias in the 1932 case R. v. Wesley:

   I think the intention was that in hunting for sport or for commerce
   the Indian like the white man should be subject to laws which make
   for the preservation of game but in hunting wild animals for the
   food necessary to his life, the Indian should be placed in a very
   different position from the white man who generally speaking does
   not hunt for food and was by the proviso to s. 12 [of the Natural
   Resources Agreement signed between Canada and the Province of
   Saskatchewan in 1930] reassured of the continued enjoyment of a
   right which he has enjoyed from time immemorial. (380)

When it did arise, the issue concerned the priority of aboriginal commercial uses over non-Indian uses and the extent of provincial regulation over the commercial or sale aspects of the transaction. (381)

The entrenchment of aboriginal rights in the Constitution Act, 1982 changed the focus of the inquiry concerning aboriginal uses of natural resources for non-subsistence and commercial purposes. Where an aboriginal or treaty right to trade was found, the courts distinguished between the right to the sell, trade and barter for livelihood, support and sustenance purposes versus harvesting for commercial market based purposes. (382) Trade for subsistence purposes was considered less problematic as it was subject to an inherent limitation, i.e. there is a natural limit to the amount of natural resources that can be used and consumed for food, social and ceremonial purposes by a given population. In contrast, the right to commercial exploitation for the market was "without internal limitation." (383) In either circumstance, a prohibition from commercial exploitation needed to be justified under the Sparrow analysis, which allowsg for governmental regulation that infringed upon existing rights for "conservation and resource management." (384)

Coupled with the Crown's fiduciary duty to the aboriginals, the Sparrow framework suggests that where the commercial exploitation of natural resources is held to be within the scope of the protected right, it would be difficult for the provinces and federal government to regulate. (385) Nevertheless, even as the courts have recognized the legal efficacy of the rights and the curtailed means by which the governments have sought to regulate them, it tied commercial exploitative activity based on usufructuary rights firmly to cultural practices that in turn limited resource usage to small-scale trading and bartering activities that had an "inherent limitation." (386) First, the resource exploitation was limited because of conservation was identified by the courts as coincident with tribal cultural interests. For example, the Sparrow Court noted:

   While the "presumption" of validity is now outdated in view of the
   constitutional status of the aboriginal rights at stake, it is
   clear that the value of conservation purposes for government
   legislation and action has long been recognized. Further, the
   conservation and management of our resources is consistent with
   aboriginal beliefs and practices, and, indeed, with the enhancement
   of aboriginal rights. (387)

Second, aboriginal title (and by implication aboriginal rights), while considered by the courts to be "possessory" and "not restricted to those uses with their origins in the practices, customs and traditions integral to distinctive aboriginal societies," is nevertheless limited to those only usages that are compatible with traditional aboriginal uses. (388) The Court's decision in Adams and Cote, reinforced the traditional use paradigm. (389) Detached from a possessory interest and all that this entails, the use rights then become those particular customs or traditional cultural practices, seemingly "frozen" in history prior to European contact, exercised at the time the British asserted sovereignty in the area or at the time the treaty was signed. Third, the Court has tied protected usages and practices to "distinctive" cultural practices that existed prior to European contact. Practices that arose after European contact, such as commercial "market-based" trading due to increased demand from Europeans and aboriginals engaged in the fur trade, are not activities that are protected. (390)

Evidence of aboriginal economic and social activity in response to the non-aboriginal Indian "market" as well as and shifting economic patterns within and among the tribes generated by the fur trade and later by settler mining, logging and agriculture, even if such new activities existed over several centuries as in Nova Scotia, can not serve as the basis for claiming an aboriginal right.

3. Extinguishment

The colonialist impetus behind the law has made the extinguishment of indigenous rights perhaps the most egregious example of the use of law to advance the interests of the European settlers while undermining the continued existence of the tribes. The Act of State doctrine, the non-recognition of legal rights that arise because of aboriginal use and occupancy under common law aboriginal title, and the consequent extinguishment of any rights if any are found, were important tools used by the imperial and colonial state to develop land and resources in the North American colonies. (391) However, since the enactment of sec. 35 existing aboriginal and treaty rights of the tribes, aboriginal common law and treaty rights may only be extinguished with the consent of the tribe concerned. (392)

Nevertheless, in order to gain constitutional protection, the rights need to be unextinguished as of April 17, 1982. (393) The Constitution Act only protects those rights "being in actuality in 1982" and the issue of whether a particular right has been extinguished as of that day remains heavily litigated. (394) Before Confederation, the imperial Crown by the Royal Proclamation of 1763 and each individual colony were considered capable of extinguishing aboriginal rights, either through legislation or through a treaty where the treaty was not disallowed or reserved by the imperial Crown. (395) After Confederation, only the federal government could extinguish or enter into treaties, but each province could regulate and extinguish aboriginal rights off the reserve, provided it was acting within its constitutional authority or where such authority was conferred by federal statute. At either level of jurisdiction, the intent to extinguish could be inferred. Where the legislature enacted a series of acts that taken together indicate "a unity of intention to exercise ... absolute sovereignty over all the lands ... inconsistent with any conflicting interest" such legislation would extinguish aboriginal title and whatever aboriginal usufructuary rights dependent upon that title. (396) In the common law context, the extinguishment generally concerns whether specific legislation regulating various aboriginal uses or establishing reserves extinguished the claimed right prior to 1982. (397) In a treaty context, the emphasis is on whether the terms and historical context of the treaty exempted the claimed right from the more general extinguishment and land cession provisions and/or subsequent legislation regulating land ownership and use. In a paradoxical twist on the cultural limitation of hunting, fishing, and gathering rights, the tribal negotiators are assumed by the court to be both rational and knowledgeable when they entered into an agreement to extinguish aboriginal rights and title. Extinguishment, not the retention of rights, is presumed despite the generous interpretive methodologies where the treaty is primarily concerned with land cession.

Reflecting the bias inherent in the colonial process, prior to 1982 the courts--consistent with the notion that the rights existed only at the pleasure of the Crown--have often found that they had been extinguished by the Canadian Parliament, by the Provinces acting under one of their heads of power, or by the individual colonies prior to confederation. (398) The rights do not survive if their continued existence was found to be incompatible with the Crown's assertion of sovereignty (i.e. there is no aboriginal right to cross international borders); where they were surrendered voluntarily via the treaty process; or when they are extinguished by government action that is incompatible with the continued existence of the right (399) Extinguishment by operation of law, i.e. not by treaty, was generally presumed where a statute or regulation expressed an intention to exercise a complete dominion over the territory and activities of the band:

Once a statute has been validly enacted, it must be given effect. If it's necessary effect is to abridge or entirely abrogate a common law right, then that is the effect that the courts must give it. That is as true of an aboriginal title as of any other common law right. (400)

Similarly, treaty rights could be extinguished by the enactment of inconsistent legislation or the assertion of Canadian sovereignty. The Northwest Territory Court of Appeal in R. v. Siky'ea, noting Lord Watson's dismissive language in about the rights of aboriginals under treaties in A-G for Canada v. AG for Ontario, stated that treaty obligations are nothing more than a non-legally enforceable personal obligation of a colonial governor:

   While this refers only to the annuities payable under the treaties,
   it is difficult to see that the other covenants in the treaties,
   including the one we are here concerned with, can stand on any
   higher footing. It is always to be kept in mind that the Indians
   surrendered their rights in the territory in exchange for these
   promises. This "promise and agreement", like any other, can, of
   course, be breached, and there is no law of which I am aware that
   would prevent Parliament by legislation, properly within s. 91 of
   the B.N.A. Act, from doing so. (401)

Current case law has reversed the onus on the issue of extinguishment. It presumes that the Crown intended to preserve aboriginal and treaty rights and the Crown bears the burden of proof that an aboriginal right is extinguished. "The test of extinguishment to be adopted, in our opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an aboriginal right." (402) Where the courts previously found that an aboriginal or treaty right could be extinguished by the enactment of "inconsistent" legislation, current doctrine prevents the extinguishment of aboriginal rights where the rights were simply regulated or the prohibition was based on regulation without an explicit statement of intention to extinguish the rights. In Marshall I, for example, the historic regulation of the fishery by the federal and provincial government, while excluding aboriginal original fishing in common with any other fishery, nevertheless provided for specific aboriginal licenses. The Court held in part that the exceptions, rather than evidence of a comprehensive regulatory framework attempting to balance the total needs and uses of the fishery, evidenced the continued efficacy of the aboriginal right.


In the 19th century, it became generally accepted by the English settlers and the Americans that their continued economic and political progress was antithetical to the continued presence of indigenous political and economic forms. The totalizing logic of colonialism and imperialism worked to undermine the laws and policies more solicitous of indigenous rights which had been recognized in the early phase of settlement. As Weaver puts it:

   Law and culture--embracing appropriation of sovereignty, the
   exercise of governmental pre-emption, a weighing of military costs,
   a model of civilization that put European agriculture at its
   pinnacle, and the ideals of material improvement--fashioned a
   cognitive framework for acquisition. (403)

Within this totalizing framework, informed by increasingly racialist views and unitary ideas of national sovereignty, indigenous peoples were presented the option of either assimilation or extinction. Aboriginal legal orders and indigenous collective existence, which posited alternative sources for legitimacy and justification for governmental authority, were unacceptable; the national liberal state, whether deriving authority and sovereignty directly from the people or from sub-national units of government that, in turn, owed their sovereign nature to popular consent, would control all aspects of internal and external sovereignty. As such, in many respects the shape and context of hunting, fishing and gathering rights have been affected by larger constitutional issues on the one hand, and the processes of legal decision-making process on the other hand.

First, it is clear that the significant differences between the non-recognition of aboriginal sovereignty in Canada in contrast to the United States is dependent upon the unitary notion of Crown sovereignty that survived the establishment of the Canadian Federation and the concomitant inability of tribe to resist the encroachment of the Canadian state. In contrast, the issue of tribal sovereignty in the United States was caught up in the Federal government's determination to assert its primacy over the states in the decades prior to the American Civil War. Because constitutional and governmental structures varied and because of differences in judicial self-understandings of how settlement was to proceed and how the national polity was to exist, each state exhibits different permutations on the more general common law doctrine of aboriginal rights today.

Second, the persistence of these usufructuary rights in court decisions and rhetoric suggests that values internal to the law, such as the relational and normative components of the rule of law and judicial decision-making and the use of doctrinal paradigms to organize and justify judicial decisions, are an important public component of legal decision-making. This is at odds with those analyses which posit that law is so imbricated with the institutional prerogatives of the national state and the socio-economic dominance of the settlers that it can never be "neutral" in any sense. (404) Yet it is clear that the surviving elements of hunting, fishing and gathering rights in legal doctrine suggest that the law was not simply another device used by the British, Americans and settlers to impose their authority and control upon indigenous groups. As the law is relational, it was also a medium by which and through which various state institutions and peoples interact with each other and the state interacts with groups and individuals. While law does impose control and structure relationships, it also provides a mechanism whereby certain groups can resist the imposition of the very authority the law seeks to buttress, or paradoxically, increase the very state authority opposed. The law and legal doctrine are both sources of conflict and a mechanism to manage conflict in the society at large. From this perspective it is not surprising that the legal recognition of indigenous hunting, fishing and gathering rights in Canada and the United States is similar despite their different constitutional trajectories. Both source there initial legal rules and policy to regarding indigenous peoples to English sources. The use of treaties and other ostensibly "consensual" mechanisms to secure land acquisitions and ground title in the Crown or Federal government provided a legal means by which these rights survive until the present day and tribes across the continent generally secured important aspects of their substance from these activities which would be disrupted by settlement and settler economic exploitation. This process has been facilitated by access to the courts and common law jurisprudence, which has resulted in an imposing doctrinal edifice.

Third, due to the tension between the idea that indigenous peoples have various "group rights" and/or juridical equality with the national state and its underlying liberal ethos, usufructuary rights have for the most part been restricted to "traditional" activities. As the courts have used this "traditionalist" approach to define the existence, content and scope of the rights as well as to reconcile them with the rights of other citizens, the potential for an expansive construction of indigenous use rights and the concomitant expansive use of judicial power has been curtailed. Yet, the approach mistakenly assumes tradition and traditional activities were static or homogenous, ignores the idea of agency or the bargaining aspect in the treaty process, and assumes that regardless of the historical period and the cultural, commercial, and subsistence practices of the tribe, indigenous peoples had no desire to amass wealth because to do so would be "untraditional." This culturally proscribed limitation on the harvest applies to subsistence activities and extends to those few instances where there has been a judicial recognition of commercial rights, either as a "traditional activity" or as a modern manifestation/evolution of a traditional activity.

Fourth, it appears that this focus on "traditional" activities will not prevent further development of the doctrine of hunting, fishing and gathering activities with respect to whether these use rights provide a scope for additional indigenous control or management of non-member land uses. Canadian law provides for extensive consultative rights and in many instances American treaty specific institutional arrangements provide for extensive tribal say in the co-management process. However, simple "consultation" and the legal and factual indeterminacy that it entails may not provide sufficient protection to the usufructuary resources where economic, demographic and environmental impacts of development can have increasingly large impacts on resources. If the law recognizes that tribes have a legally cognizable interest to exploit resources in an area, it arguably follows that any non-tribal uses that impact the right may be subject to tribal defeasement or tribal control where it seriously impacts or diminishes the resource. It is in this area that more litigation is to be expected.

Finally, the changes in the doctrine of indigenous usufructuary rights over time suggests that constitutional innovation, not simply incremental judicial decision-making within the confines of a legal doctrine, will be necessary if the two nations wish to address fully some of the historic grievances of indigenous people. The centralizing and totalizing claims of the unitary euro-centric state authority have not sat comfortably with alternative pluralistic notions of law and authority advocated by indigenous groups. This is particularly salient in hunting, fishing and gathering disputes because for indigenous groups these issues are often about asserting their "sovereignty rights at the 'grass roots' level." (405) A tension is evident even in some of the more celebrated cases within the jurisprudence. Integrating indigenous entities and individuals within the polity profoundly implicates the foundational myths and the skeleton of principles which structure the polity, leading to issues which are, in many ways, non-justiciable. For indigenous groups to obtain full recognition of their "sovereignty rights" it will be necessary for the larger polity to revaluate how rights in general are understood and enforced by the judiciary within the polity, how alternative levels of government and sources of law interact with one another, and how the separation of powers and sovereignty are conceived of within the legal and political system--issues which are best left for public debate and conciliation.

* Associate Professor, City University of Hong Kong.

(1) Robert A. Williams, Jr., The American Indian In Western Legal Thought 6 (1990).

(2) Paul G. McHugh, Aboriginal Societies And The Common Law: A History Of Sovereignty, Status And Self-Determination 4 (Oxford University Press 2004).

(3) John L. Comaroff, Colonialism, Culture, and the Law: A Foreword, 26 L. & Soc. Inquiry 305 (2001).

(4) Lauren Benton, Law And Colonial Cultures: Legal Regimes In World History 2-3 (Cambridge University Press 2002).

(5) Sally Merry, Law And Colonialism, 25 L. & Soc'y Rev. 889, 891 (1991).

(6) A profit a prendre is defined as a "right to take a part of the soil or product of the land of another ... [including] the right to hunt and fish on another's land." 25 Am. Jur. 2d Easements and Licenses in Real Property [section] 4 (1996). "[A] profit a prendre is a liberty in one person to enter another's soil and take from it the fruits not yet carried away." In this sense, it is distinguishable from an easement which only allows access, which does not incorporate the right to take the fruits of the land." "A profit a prendre is therefore distinguishable from an easement, since one of the features of an easement is the absence of all right to participate in the profits of the soil charged with it. It is similar to an easement, however, in that it is an interest in land."; C.J.S. Easements [section] 9, p. 179, "The [profit] is in the nature of an easement ... but it is more than an easement. It is an interest or an estate in the land itself as distinguished from a mere personal obligation of the owner of the reality." The right to cross another's land to take water or fish from sites along the water edge is by an access easement alone, rather than a profit. "A profit a prendre is a right to take from the land of another some part of the soil of that tenement or minerals under it or of its natural produce, or the animals ferae naturae existing upon it. The subject matter of a profit must be capable of ownership...." Paul Jackson, The Law of Easements and Profits 28 (1978). Black's Law Dictionary defines a usufruct as: "A right to use another's property for a time without diminishing or damaging it, although the property might naturally deteriorate over time." Black's Law Dictionary 1542 (7th ed., 1999). The terms "profits a prendre" and "usufruct" are essentially analogous in English law despite the Roman and civil law origins of usufructs. Nevertheless usufructuary right as the term is used in indigenous jurisprudence implies a right to use property for purposes that include the "ownership" or possession of the items taken from the land. Such things as the use of resources for religious and cultural purposes or the general environmental management of area do not fit well within the strict English law definition of a profit or usufruct. See L. F. E. Goldie, Note, Title and Use (and Usufruct)--An Ancient Distinction too Oft Forgot, 79 Am. J. Int'l L. 689, 690-695 (1985); Gary D. Meyers, Native Title Rights in Natural Resources: A Comparative Perspective of Modern Jurisprudence, 19 Envt'l & Planning L.J. 245 (2002).

(7) Michael C. Blumm, Native Fishing Rights and Environmental Protection in North America and New Zealand: A comparative Analysis of Profits a Prendre and Habitat Servitudes, 8 Wis. Int'l L.J. 2 (1989).

(8) James S. Frideres, Aboriginal Peoples In Canada: Contemporary Conflicts 2-20 (Prentice Hall Allyn and Bacon Canada 5th ed. 1998).

(9) John G.A. Pocock, Time, Institutions and Action: an Essay on Traditions and their Understanding, Politics, Language and Time Essays on Political Thought and History 233 (University of Chicago Press 1971).

(10) Executive Orders may establish off-reservation hunting, fishing and gathering rights both prior to and after statehood. However, after statehood there will be no implied rights found and the rights must be set forth explicitly in the Executive Order. See Confederated Tribes of Chehalis Indian Reservation v. Washington, 96 F.3d 334 (Wash. 1996).

(11) New Mexico v. Mescalero Apache Tribe (New Mexico), 462 U.S. 324, 335, n.18 (1983).

(12) Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973).

(13) Baldwin v. Fish and Game Comm'n of Montana, 436 U.S. 371 (1978). Burger, C.J., concurring notes at p. 392 that the state ownership doctrine "manifests the State's special interest in regulating and preserving wildlife. Whether we describe this interest as proprietary or otherwise is not significant" (citations omitted).

(14) Dep't of Game of Washington v. Puyallup Tribe (Puyallup II), 414 U.S. 44, 49 (1973).

(15) Nevada v. Hicks, 533 U.S. 353 (2001).

(16) Massachusetts v. New York, 271 U.S. 65 (1926); Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837) (grants of franchises or privileges from a state are strictly construed in favor of the public as they tend to impair a state's power to exercise ordinary governmental functions).

(17) Nevada, 533 U.S. 353; South Dakota v. Gregg Bourland, 508 U.S. 679 (1993); Montana v. United States, 450 U.S. 544 (1981).

(18) Wisconsin v. Baker, 698 F.2d 1323, 1333 (1983) (holding that Indian tribe may not exclusively regulate fishing on lakes located within or bordering the reservation absent explicit federal treaty as state assumed ownership of lakebed upon statehood).

(19) I am using the term possession the same way that it is used by Professor Kent McNeil in his book Common Law Aboriginal Title. Prof. McNeil suggests that possession is a legal concept or a conclusion of law which arising from a sufficiently close physical relationship between a person and a parcel of land due to an actual presence or control over it, coupled with an intention to hold the territory for the person's own purposes. Kent McNeil, Common Law Aboriginal Title 6-14 (Clarendon Press 1989). Absent an explicit Congressional or Executive determination of the territory possessed by a particular tribe or a treaty description, the determination of possession by the tribe of a particular territory is a question of fact base on the intention of the parties and all the surrounding circumstances. See United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 345 (1941).

(20) Johnson v. M'Intosh, 21 U.S. 543, 574 (1823).

(21) See Mitchel v. United States, 34 U.S. 711 at 745 (1835):

   One uniform rule seems to have prevailed in the British provinces
   in America by which Indian lands were held and sold, from their
   first settlement, as appears by their laws--that friendly Indians
   were protected in the possession of the lands they occupied, and
   were considered as owning them by a perpetual right of possession
   in the tribe or nation inhabiting them, as their common property,
   from generation to generation, not as the right of the individuals
   located on particular spots.

(22) Turtle Mountain Band of Chippewa Indians v. United States, 490 F.2d 935 (Ct. Cl. 1974).

(23) Mitchel v. The United States, 34 U.S. 711, 746 (1835).

(24) United States v. Shoshone Tribe, 304 U.S. 339 (1941).

(25) Oneida Nation of New York v. New York, 414 U.S. 661, 667 (1974).

(26) Johnson v. M'Intosh, 21 U.S. 543 (1823); Cherokee Nation v. Georgia, 30 U.S. 1, 33 (1831); Worcester v. Georgia. 31 U.S. 515, 559 (1832). The Act of State Doctrine, which denies the existence of aboriginal interests absent statutory recognition and enactment, has had little applicability in American Indian jurisprudence since American courts recognized Indian possessory interests at common law and the special governmental status of tribal entities early in the history of the republic. The particular reading of the holding in Johnson v. M'Intosh (i.e. discovery is equivalent to absolute title by conquest) as well as Chief Justice Marshall's statement that "Conquest gives a title which the Courts of the conqueror cannot deny" is suggestive of the judicial impotence toward the recognition of aboriginal property rights assumed by the Act of State doctrine as it is understood in Canada. However the M'Intosh Court was looking as the issue from a separation of powers perspective--it never held that judicial recognition of Indian property rights was dependent upon a legislative act. The Act of State doctrine is also related to the "political question" doctrine outlined by the Court in Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), but the Court never applied that doctrine to its logical limits nor is does the doctrine preclude judicial recognition of aboriginal interests. As early as 1914 in Perrin v. United States, the Court, while nevertheless holding the plenary power of Congress over Indian affairs, noted that "[a]s the power is incident only to the presence of the Indians and their status as wards of the Government, it must be conceded that it does not go beyond what is reasonably essential for their protection, and that, to be effective, its exercise must not be purely arbitrary but founded upon some reasonable basis." Perrin v. United States, 232 U.S. 478, 486 (1914). Similarly, the Court's discussion of "recognized title" and the constitutional protection of aboriginal title under the Fifth Amendment in Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) suggests that some positive step of recognition must be taken by the federal government to secure common law property rights. However, the precedential force of this decision is weak because the case occurred in Alaska and the constitutional issue was relatively narrow. Tribes retain the federal common law right to enforce their aboriginal land rights. Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985). Throughout the 20th century the Court has also diminished the reach of the political question doctrine. In Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977), the Court noted that government authority over tribal property, although plenary, may be challenged when the governmental action infringes on constitutional rights because Indian rights are rooted within the Constitution. Today, while Congressional authority is broad, Congressional acts that affect Indians are subject to judicial review and ordinary constitutional protects may be invoked where an action is not rationally tied to congressional trust obligations. The test is found in Morton v. Mancari: "As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward the Indians, such legislative judgments will not be disturbed." Morton v. Mancari, 417 U.S. 535, 555 (1974).

(27) Johnson v. M'Intosh, 21 U.S. 543, 573 (1823).

(28) See id. at 573-74:

   Those relations which were to exist between the discoverer and the
   natives, were to be regulated by themselves. The rights thus
   acquired being exclusive, no other power could interpose between
   them. In the establishment of these relations, the rights of the
   original inhabitants were, in no instance, entirely disregarded;
   but were necessarily, to a considerable extent, impaired. They were
   admitted to be 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; but their rights to complete
   sovereignty, as independent nations, were necessarily diminished,
   and their power to dispose of the soil at their own will, to
   whomsoever they pleased, was denied by the original fundamental
   principle, that discovery gave exclusive title to those who made

See also Worcester v. Georgia, 31 U.S. 515, 559 (1832):

   The Indian nations had always been considered as distinct,
   independent political communities, retaining their original natural
   rights, as the undisputed possessors of the soil, from time
   immemorial, with the single exception of that imposed by
   irresistible power, which excluded them from intercourse with any
   other European potentate than the first discoverer of the coast of
   the particular region claimed: and this was a restriction which
   those European potentates imposed on themselves, as well as on the

See Cherokee Nation v. Georgia, 30 U.S. 1, 33 (1831):

   Though the Indians are acknowledged to have an unquestionable, and,
   heretofore, unquestioned right to the lands they occupy, until that
   right shall be extinguished by a voluntary cession to our
   government; yet it may well be doubted whether those tribes which
   reside within the acknowledged boundaries of the United States can,
   with strict accuracy, be denominated foreign nations. They may,
   more correctly, perhaps, be denominated domestic dependent nations.
   They occupy a territory to which we assert a title independent of
   their will, which must take effect in point of possession when
   their right of possession ceases. Meanwhile they are in a state of
   pupilage. Their relation to the United States resembles that of a
   ward to his guardian.

(30) See M'Intosh, 21 U.S. at 588 (emphasis added):

   We will not enter into the controversy, whether agriculturists,
   merchants, and manufacturers, have a right, on abstract principles,
   to expel hunters from the territory they possess, or to contract
   their limits. Conquest gives a title which the Courts of the
   conqueror cannot deny, whatever the private and speculative
   opinions of individuals may be, respecting the original justice of
   the claim which has been successfully asserted. The British
   government, which was then our government, and whose rights have
   passed to the United States, asserted a title to all the lands
   occupied by Indians, within the chartered limits of the British
   colonies. It asserted also a limited sovereignty over them, and the
   exclusive right of extinguishing the title which occupancy gave to

(31) See Worcester, 31 U.S. at 561:

   The Cherokee nation, then, is a distinct community, occupying its
   own territory, with boundaries accurately described, in which the
   laws of Georgia can have no force, and which the citizens of
   Georgia have no right to enter, but with the assent of the
   Cherokees themselves, or in conformity with treaties, and with the
   acts of congress. The whole intercourse between the United States
   and this nation, is by our constitution and laws, vested in the
   government of the United States.

(32) United States v. Winans, 198 U.S. 371, 380-81 (1905):

   In the context of Indian fishing rights, the Supreme Court long ago
   rejected contentions that Indians obtained no greater rights by
   virtue of a treaty than non-Indian citizens: This (that the Indians
   acquired no rights but those they would have without a treaty) is
   certainly an impotent outcome to negotiations and a convention
   which seemed to promise more, and give the word of the nation for
   more. And we have said we will construe a treaty with the Indians
   as "that unlettered people" understood it, and "as justice and
   reason demand, in all cases where power is exerted by the strong
   over those to whom they owe care and protection," and counterpoise
   the inequality "by the superior justice which looks only to the
   substance of the right, without regard to technical rules.... How
   the treaty in question was understood may be gathered from the

See also the United States Court of Appeals' decision in United States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert, denied, 423 U.S. 1086 (1976), wherein the Court stated: "In treating treaty Indian fishermen no differently from other citizens of the state, the state has rendered the treaty guarantees nugatory."

(33) United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 347 (1941).

(34) See Oneida Nation of New York v. New York, 414 U.S. 661, 670 (1974):

   The rudimentary propositions that Indian title is a matter of
   federal law and can be extinguished only with federal consent apply
   in all of the States, including the original 13. It is true that
   the United States never held fee title to the Indian lands in the
   original States as it did to almost all the rest of the continental
   United States and that fee title to Indian lands in these States,
   or the pre-emptive right to purchase from the Indians, was in the
   State.... But this reality did not alter the doctrine that federal
   law, treaties, and statutes protected Indian occupancy and that its
   termination was exclusively the province of federal law.

(35) United States v. Michigan, 653 F.2d 277, 278 (1981).

(36) Wisconsin v. Envt'l Prot. Agency, 266 F.3d 741 (2001) (citations omitted). The author was involved in this case when he was tribal attorney for the intervenor Sokaogon Chippewa Community.

(37) "The conceptual framework, then, for interpreting the treaty is that the grant or cession in the treaty is not made from the United States to the Indians. Rather, the Indians were the grantors of a vast area they owned aboriginally and the United States was the grantee." United States v. Michigan, 471 F. Supp. 192, 254 (W.D. Mich. 1979).

(38) In Worcester v. Georgia, 31 U.S. 515, 520 (1832), Chief Justice Marshall noted the international law basis of tribal sovereignty:

   In opposition to the original right, possessed by the undisputed
   occupants of every country, to this recognition of that right,
   which is evidenced by our history in every change through which we
   have passed, are placed the charters granted by the monarch of a
   distant and distinct region, parcelling out a territory in
   possession of others, whom he could not remove, and did not attempt
   to remove, and the cession made of his claims, by the treaty of
   peace. The actual state of things at the time, and all history
   since, explain these charters; and the king of Great Britain, at
   the treaty of peace, could cede only what belonged to his crown.
   These newly asserted titles can derive no aid from the articles so
   often repeated in Indian treaties, extending to them, first, the
   protection of Great Britain, and afterwards that of the United
   States. These articles are associated with others, recognising
   their title to self-government. The very fact of repeated treaties
   with them recognises it; and the settled doctrine of the law of
   nations is, that a weaker power does not surrender its
   independence--its right to self-government, by associating with a
   stronger, and taking its protection. A weak state, in order to
   provide for its safety, may place itself under the protection of
   one more powerful, without stripping itself of the right of
   government, and ceasing to be a state. Examples of this kind are
   not wanting in Europe. "Tributary and feudatory states," says
   Vattel, "do not thereby cease to be sovereign and independent
   states, so long as self-government and sovereign and independent
   authority are left in the administration of the state." At the
   present day, more than one state may be considered as holding its
   right of self-government under the guarantee and protection of one
   or more allies.

(39) United States v. Mazurie, 419 U.S. 544, 557 (1975).

(40) Minnesota v. Mille Lacs Band of Chippewa Indians (Mile Lacs), 526 U.S. 172, 195 n. 5 (1999).

(41) United States v. Winans, 198 U.S. 371, 381 (1905).

(42) See Winters v. United States, 207 U.S. 564, 576 (1908):

   And this, it is further contended, the Indians knew (that the lands
   were arid), and yet made no reservation of the waters. We realize
   that there is a conflict of implications, but that which makes for
   the retention of the waters is of greater force than that which
   makes for their cession. The Indians had command of the lands and
   the waters command of all their beneficial use, whether kept for
   hunting, "and grazing roving herds of stock," or turned to
   agriculture and the arts of civilization. Did they give up all
   this? Did they reduce the area of their occupation and give up the
   waters which made it valuable or adequate?

See also United States v. Wheeler, 435 U.S. 313 (1978).

(43) Johnson v. M'Intosh, 21 U.S. 543, 597 (1823).

(44) Bd. of Cnty. Comm'rs v. Seber, 318 U.S. 705, 715 (1943).

(45) See United States v. Kagama, 118 U.S. 375, 383-84 (1886):

   These Indian tribes are the wards of the nation. They are
   communities dependent on the United States. Dependent largely for
   their daily food. Dependent for their political rights. They owe no
   allegiance to the States, and receive from them no protection.
   Because of the local ill feeling, the people of the States where
   they are found are often their deadliest enemies. From their very
   weakness and helplessness, so largely due to the course of dealing
   of the Federal Government with them and the treaties in which it
   has been promised, there arises the duty of protection, and with it
   the power.

See also Morton v. Mancari, 417 U.S. 535, 555 (1974) ("As long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation toward Indians, such legislative judgments will not be disturbed"). In Cohen's Handbook of Federal Indian Law the authors argue that the Mancari statement "seems to impose substantive limitations. Where Congress is exercising its authority over Indians rather than some other distinctive power, the trust obligation apparently requires that its statutes be based on a determination that the Indians will be protected. Otherwise, such statutes would not be rationally related to the trustee obligation." Cohen's Handbook of Federal Indian Law 221 (Neil Newton ed., 2012).

(46) Although "the undisputed existence of a general trust relationship between the United States and the Indian people" can "reinforce" the conclusion that the relevant statute or regulation imposes fiduciary duties, that relationship alone is insufficient to support jurisdiction under the Indian Tucker Act. Instead, the analysis must train on specific rights-creating or duty-imposing statutory or regulatory prescriptions." United States v. Navajo Nation, 537 U.S. 488, 506 (2003) (citations omitted); see also United States v. Mitchell, 463 U.S. 206 (1983).

(47) The principle also requires that the United States bring suit to preserve a treaty guaranteed right.

(48) Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n (Fishing Vessel), 443 U.S. 658, 675 (1979).

(49) The assumption of good faith discussed here is not a manifestation of the political question doctrine. The political question doctrine holds that the formation of an agreement, once accepted by Congress, may not be litigated before the courts. An example of the political question doctrine is found in United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979). Discussing the 1836 Treaty with the Chippewa and Ottawa in Michigan, Justice Fox noted:

   [I]n view of the dismal history which generally surrounds the
   dealings of the United States with these first inhabitants of this
   land, and the history of this specific treaty negotiation,
   punctuated by numerous instances of underhanded and perfidious
   dealings with these trusting and gentle people, simple justice
   requires that this court begin to put an end to the unfairness
   which has plagued the Indians in their dealings with the white man
   from their first contact with him, and restore to the Indian that
   which was by nature his, and now by right also. The holding does
   not go so far as to void the treaty because of lack of consent.
   See, e.g., Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), where the
   Court held that it could not consider the validity of an agreement
   allegedly obtained by fraudulent misrepresentation because the
   question of the validity of the agreement belonged to Congress. The
   language of the treaty does grant territory to the United States.
   Were it not for Lone Wolf, and DeCoteau v. District County Court,
   420 U.S. 425, which proscribe invoking the canon that legal
   ambiguities are to be resolved for the benefit of the Indians to
   the extent of disregarding clear expressions of tribal and
   Congressional intent, this court, would, on the record before it,
   identify this as an invalid treaty because it was the product of
   fraud, duress, conflicts of interest, coercion, and was very likely
   produced by the alcohol of liquor peddlers who sought to keep the
   Indians from knowing what they were doing.

Michigan, 471 F. Supp. at 258 (citations omitted). The assumption of good faith focuses on the textual and judicially found understanding of the agreement, not the formation. It is an assumption that, as noted by Justice Stevens, "[w]hen the signatory nations have not been at war and neither is the vanquished, it is reasonable to assume that they negotiated as equals at arm's length." Fishing Vessel, 443 U.S. at 675.

(50) It could be argued that the use of legislative materials simply confirms pre-existing decision by the Court relying upon other judicial predilections. When applying the traditional canons of construction to materials generated by the legislative process, the ambiguities inherent in such an analysis (e.g. which legislator's views are important or determinative? What non-statutory documents generated within the legislative process are relevant?) become manifest. However, the use of legislative intent in hunting, fishing and gathering cases has had three major effects. First, it has provided extensive room for the judiciary to develop an Indian jurisprudence as a co-equal branch of the government. This jurisprudence has generally been protective of federal and tribal interests to the detriment of state interests. Second, it has prevented the creation of general rules relating to hunting, fishing and gathering rights in favor of a particularized fact based historical analysis. Third, it has allowed the courts to soften some of the more egregious adverse impacts that certain federal policies have had on Native Americans.

(51) Statutory rules of construction regarding agreements with specific tribes and enacted on behalf of Indians are interpreted using the same methodology as those involving treaty construction, except that in the latter case Native Americans had no "understanding" of the enactment because it was imposed upon them and neither their consent nor understanding of its terms are considered material. See Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 at 766 (1985) (citations omitted):

   [T]he standard principles of statutory construction do not have
   their usual force in cases involving Indian law. As we said earlier
   this Term, "[the] canons of construction applicable in Indian law
   are rooted in the unique trust relationship between the United
   States and the Indians." Two such canons are directly applicable in
   this case: first, the States may tax Indians only when Congress has
   manifested clearly its consent to such taxation second, statutes
   are to be construed liberally in favor of the Indians, with
   ambiguous provisions interpreted to their benefit....

See also Choatte v. Trapp, 224 U.S. 665 (1912).

(52) United States v. Michigan, 471 F. Supp. 192, 249-61 (W.D. Mich. 1979). I am indebted to Justice Fox for his discussion and citations of the canons of treaty interpretation. The principles of treaty construction, while related to the United States' fiduciary obligations to Native Americans, contrasts with an unwillingness to differentiate among those situations where an agreement is the result of misrepresentation, coercion, or the result of mutual bargaining. The courts have recognized the distinctions but fail to attribute different consequences to each situation. In Lone Wolf v. Hitchcock, 187 U.S. 553 (1903), the Court refused to look behind an agreement allegedly based on misrepresentation and fraud since it had been accepted by Congress. At the same time, the Court has recognized the coercive nature of certain treaties. In Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970), Justice Marshall, writing for the majority, noted that the various treaties with the Cherokees in Oklahoma were not arms-length transactions. The Indian Nations did not seek out the United States and agree upon an exchange of lands in an arm's-length transaction. Rather, treaties were imposed upon them and they had no choice but to consent. Id. at 630-31. Justice Marshall's conclusion is at odds with Justice Stevens who wrote that "[w]hen the signatory nations have not been at war and neither is the vanquished, it is reasonable to assume that they negotiated as equals at arm's length." Fishing Vessel, 443 U.S. at 675.

(53) Jones v. Meehan, 175 U.S. 1, 10-11 (1899).

(54) For example, the Court in Fishing Vessel, 443 U.S. at 677-78 (emphasis in original) stated:

   It is true that the words "in common with" may be read either as
   nothing more than a guarantee that individual Indians would have
   the same right as individual non-Indians or as securing an interest
   in the fish runs themselves. If we were to construe these words by
   reference to 19th-century property concepts, we might accept the
   former interpretation, although even "learned lawyers" of the day
   would probably have offered differing interpretations of the three
   words. But we think greater importance should be given to the
   Indians' likely understanding of the other words in the treaties
   and especially the reference to the "right of taking fish"--a right
   that had no special meaning at common law but that must have had
   obvious significance to the tribes relinquishing a portion of their
   pre-existing rights to the United States in return for this
   promise. This language is particularly meaningful in the context of
   anadromous fisheries--which were not the focus of the common
   law--because of the relative predictability of the "harvest." In
   this context, it makes sense to say that a party has a right to
   "take"--rather than merely the "opportunity" to try to catch--some
   of the large quantities of fish that will almost certainly be
   available at a given place at a given time.

(55) In Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 357 (1945), Justice Jackson, in a concurrence, noted the inappropriateness of applying Anglo-American property concepts to the conceptions of ownership held by the tribes: "We doubt if any interpreter could intelligently translate the contents of a writing that deals with the property concept, for the Indians did not have words to fit ideas that have never occurred to them. Ownership meant no more to them than to roam the land as a great common, and to possess and enjoy it in the same way that they possessed and enjoyed sunlight and the west wind and the feel of spring in the air. Acquisitiveness, which develops a law of real property, is an accomplishment only of the 'civilized.'"

(56) Menominee Tribe of Indians v. United States, 391 U.S. 404, 405 (1968).

(57) Id. at 405 n.2.

(58) Minnesota v. Mille Lacs Band of Chippewa Indians (Mille Lacs), 526 U.S. 172, 198 1999).

(59) The congressional intent must be clear, to overcome "the general rule that '[doubtful] expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith.'" McClanahan v. Ariz, State Tax Comm'n, 411 U.S. 164,174 (2001) (quoting Carpenter v. Shaw, 280 U.S. 363, 367 (1929)).

(60) Winters v. United States, 207 U.S. 564, 574-77 (1908).

(61) Worcester v. Georgia, 31 U.S. 515 (1832).

(62) Antoine v. Washington, 420 U.S. 194 (1975).

(63) Menominee Indian Tribe of Wisconsin v. Thompson, 943 F. Supp. 999, 1007 (W.D. Wis. 1996).

(64) Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206 (1978).

(65) Minnesota v. Mille Lacs Band of Chippewa Indians (Mille Lacs), 526 U.S. 172, 202 (1999). Justice O'Connor continued, "an analysis of the history, purpose, and negotiations of this Treaty leads us to conclude that the Mille Lacs Band did not relinquish their 1837 treaty rights in the 1855 Treaty" (emphasis in original).

(66) South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986); "We give this rule the broadest possible scope, but it remains at base a canon for construing the complex treaties, statutes, and contracts which define the status of Indian tribes. A canon of construction is not a license to disregard clear expressions of tribal and congressional intent." DeCoteau v. Dist. Cnty. Court, 420 U.S. 425, 447 (1975); See also Choctaw Nation v. United States, 318 U.S. 423,431-32(1943):

   Of course treaties are construed more liberally than private
   agreements, and to ascertain their meaning we may look beyond the
   written words to the history of the treaty, the negotiations, and
   the practical construction adopted by the parties. Especially is
   this true in interpreting treaties and agreements with the Indians;
   they are to be construed, so far as possible, in the sense in which
   the Indians understood them, and "in a spirit which generously
   recognizes the full obligation of this nation to protect the
   interests of a dependent people." But even Indian treaties cannot
   be re-written or expanded beyond their clear terms to remedy a
   claimed injustice or to achieve the asserted understanding of the

(67) "In determining the scope of the reserved rights of hunting and fishing, we must not give the treaty the narrowest construction it will bear." In United States v. Winans, 198 U.S. 371 (1905), the Court held that, despite the phrase "in common with citizens of the Territory," Article III conferred upon the Yakimas continuing rights, beyond those which other citizens may enjoy, to fish at their "usual and accustomed places" in the ceded area; and in Seufert Bros. Co. v. United States, 249 U.S. 194 (1915), a similar conclusion was reached even with respect to places outside the ceded area. See also Tulee v. Washington, 315 U.S. 681, 684-5 (1942) where the Court stated:

   From the report set out in the record before us, of the proceedings
   in the long council at which the treaty agreement was reached, we
   are impressed by the strong desire the Indians had to retain the
   right to hunt and fish in accordance with the immemorial customs of
   their tribes. It is our responsibility to see that the terms of the
   treaty are carried out, so far as possible, in accordance with the
   meaning they were understood to have by the tribal representatives
   at the council, and in a spirit which generously recognizes the
   full obligation of this nation to protect the interests of a
   dependent people.

(68) Antoine v. Washington, 420 U.S. 194, 212 (1975) (Douglas, J. concurring).

(69) Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n (Fishing Vessel), 443 U.S. 658, 662 (1979).

(70) The procedural history of the Mille Lacs case is complex. After Mille Lacs Band initially sued Minnesota in 1990, nine Minnesota counties, six landowners and the United States intervened. The District Court bifurcated the case and ruled on various cross-motions for summary judgment. This decision is found at Mille Lacs Band of Chippewa Indians v. Minnesota, 853 F. Supp. 1118 (D. Minn. 1994) and is commonly called Mille Lacs I. After an aborted settlement with the State of Minnesota, the Trial Court held that the usufructuary rights under the 1837 Treaty continue to exist. This decision is found at 861 F. Supp. 784 (D. Minn. 1994) and is commonly called Mille Lacs II. After the Mille Lacs II decision, the Wisconsin Chippewa intervened and the state moved for summary judgment arguing that the Wisconsin bands' claims were barred by previous litigation before the Court of Claims and the Indian Claims Commission, as well as the arguing the 1842 Treaty extinguished their 1837 rights. The District Court denied all of Minnesota's and other defendant's arguments. This decision is called Mille Lacs III and is found at 952 F. Supp. 1362 (D. Minn. 1997). The next event in the litigation concerned the intervention of the Fond du Lac band. In 1992 Fond du Lac band brought a separate claim against Minnesota claiming rights under the 1837 and 1854 Treaties. In March 1996, the District Court held that the Fond du Lac Band retains rights to hunt, fish, and gather under both the 1837 and 1854 Treaties. The Mille Lacs Trial Court then consolidated the portion of the Fond du Lac case dealing with the 1837 treaty. The Bands and the State had stipulated to a Conservation Code and Management Plan under which tribal hunting, fishing and gathering would be regulated. The remaining issues were submitted on cross summary judgment motions wherein the court rejected making a further allocation of resources affected by the regulations and excluded certain privately held lands where the treaty right may be exercised. This decision is called Mille Lacs IV and it is found at 952 F. Supp. 1362 (D. Minn. 1997). The entire case (Phase I & II) was then appealed to the 8th Circuit Court of Appeals which affirmed the District Court. This decision is found at 124 F.3d 904 (8th Cir. 1997).

(71) Mille Lacs I, 853 F. Supp. 1118. Note, however, that the Court in United States v. Winans, 198 U.S. 371, 381 (1905) seemed to conceptualize the usufructuary access right as an interest in land.

(72) South Dakota v. Bourland, 508 U.S. 679, 693 (1993); United States v. Dion, 476 U.S. 734, 738 (1986).

(73) United States v. Choctaw Nation, 179 U.S. 494, 535 (1900).

(74) Montana v. United States, 450 U.S. 544, 552 (1981). When considering the treaties through which the Crow claimed title, the Court stated that the "effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory." Id. at 553. As to the tribe's claim to regulate non-member hunting and fishing on non-Indian fee land within the reservation boundaries, the Court held that the extent of authority granted by the treaty only extended to territory where the tribe exercised "absolute and undisturbed use and occupation." The Court further stated on p. 559:

   And it is clear that the quantity of such land was substantially
   reduced by the allotment and alienation of tribal lands as a result
   of the passage of the General Allotment Act of 1887, 24 Stat. 388,
   as amended, 25 U.S.C. [section] 331 et seq., and the Crow Allotment
   Act of 1920, 41 Stat. 751. [section] 8. If the 1868 treaty created
   tribal power to restrict or prohibit non-Indian hunting and fishing
   on the reservation, that power cannot apply to lands held in fee by

The dissent (Blackmun, J. dissenting, joined by Marshall, J. and Brennan, J.) argued on p. 578 that the "public purpose" exhibited by the United States in establishing the reservation was evident based on the historic record and that the retention of the bed of the river was consistent with the understanding of the Crow negotiators:

   It is hardly credible that the Crow Indians who heard this
   declaration [to protect the Crow by saving for them land and
   providing them with a means to sustain themselves] would have
   understood that the United States meant to retain the ownership of
   the riverbed that ran through the very heart of the land the United
   States promised to set aside for the Indians and their children

The dissent agreed with the Court's resolution of the question of the power of the tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the tribe.

(75) 18 U.S.C.A [section] 1151 provides:

   Except as otherwise provided in sections 1154 and 1156 of this
   title, the term "Indian country", as used in this chapter means (a)
   all land within the limits of any Indian reservation under the
   jurisdiction of the United States Government, notwithstanding the
   issuance of any patent, and, including rights-of-way running
   through the reservation, (b) all dependent Indian communities
   within the borders of the United States whether within the original
   or subsequently acquired territory thereof, and whether within or
   without the limits of a state, and (c) all Indian allotments, the
   Indian titles to which have not been extinguished, including
   rights-of-way running through the same.

(76) Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 275 n.4 (1955).

(77) See Lac Courte Oreilles Band v. Wisconsin (LCO III), 653 F. Supp. 1420; Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784, 839 (D. Minn. 1994). LCO involved the U.S. Circuit Court for the Western District of Wisconsin and numerous appeals to the Seventh Circuit Court of Appeals. It was a consolidated case for declaratory judgment that the Lac Courte Orielles Band of Lake Superior Chippewa retained treaty-reserved hunting, fishing, trapping and gathering rights in the public lands of the northern third of Wisconsin. The first decision by Judge Doyle was reported as United States v. Bouchard, 464 F. Supp. 1316 (W.D. Wis. 1978) where the Court ruled against the tribe. The 7th Circuit Court of Appeals reversed this decision. The appeal decision reversing and remanding the case for trial is found at Lac Courte Oreilles Band v. Voight, 700 F.2d 341 (7th Cir. 1983). It is commonly referred to as LCO 1. The subsequent District Court and Appellate decisions are likewise referred to by roman numerals. They are found at Lac Courte Oreilles Band v. Wisconsin (LCO II), 760 F.2d 177 (7th Cir. 1985). (District Court used a particular date prior to which changes in land ownership from public to private in order to determine which date excluded that land from exercise of usufructuary right is inappropriate); LCO III (court enumerates species used in ceded territory which may be harvested by methods used at time of treaty and modem methods for commercial and subsistence purpose in order to provide Chippewa with a modest living); Lac Courte Oreilles Band v. Wisconsin (LCO IV), 668 F. Supp. 1233 (W.D. Wis. 1987) (State regulation of usufructuary right must be least restrictive alternative in the interest of conservation); Lac Courte Oreilles Band v. Wisconsin (LCO V), 686 F. Supp. 226 (W.D. Wis. 1988) (Chippewa could not reach modest living needs from available harvest in ceded territory); Lac Courte Oreilles Band v. Wisconsin (LCO VI), 707 F. Supp. 1034 (W.D. Wis. 1989) (Chippewa may regulate their own harvest provided they enact and implement conservation certain measures); Lac Courte Oreilles Band v. Wisconsin (LCO VII), 740 F. Supp. 1400 (W.D. Wis. 1990) (harvestable resources in ceded territory allocated equally between Chippewa and Wisconsin); Lac Courte Oreilles Band v. Wisconsin (LCO VIII), 749 F. Supp. 913 (W.D. Wis. 1990) (Eleventh Amendment of U.S Constitution prevents recovery of monetary damages against state for violation of treaty rights); Lac Courte Oreilles Band v. Wisconsin (LCO IX), 758 F. Supp. 1262 (W.D. Wis. 1991) (treaty right does not extend to commercial timber harvesting); Final Judgment in case is found at Lac Courte Oreilles Band v. Wisconsin (LCO X), 775 F. Supp. 321 (W.D. Wis. 1991).

(78) United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 345 (1941).

(79) There has been significant aboriginal title claims asserted by tribes in the eastern United States for land that had been ceded without approval of the federal government. In the western United States aboriginal title claims are not often found outside of the framework provided by the Indian Claims Commission Act. See State v. Coffee, 556 P.2d 1185 (Idaho 1976).

(80) Confederated Tribes of Chehalis Indian Res. v. Washington, 96 F.3d 334 (9th Cir. 1996).

(81) People v. Le Blanc, 399 Mich. 31 (Mich.1976); State v. Gumoe, 53 Wis. 2d 390 (Wis. 1972); Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918).

(82) See Beecher v. Wetherby, 95 U.S. 517 at 525 (1877):

   It is true that, for many years before Wisconsin became a State,
   that tribe [the Menominee] occupied various portions of her
   territory, and roamed over nearly the whole of it. In 1825, the
   United States undertook to settle by treaty the boundaries of lands
   claimed by different tribes of Indians, as between themselves, and
   agreed to recognize the boundaries thus established, the tribes
   acknowledging the general controlling power of the United States,
   and disclaiming all dependence upon and connection with any other
   power. The land thus recognized as belonging to the Menominee tribe
   embraced the section in controversy in this case. Subsequently, in
   1831, the same boundaries were again recognized. But the right
   which the Indians held was only of occupancy. The fee was in the
   United States, subject to that right, and could be transferred by
   them whenever they chose. The grantee, it is true, would take only
   the naked fee, and could not disturb the occupancy of the Indians:
   that occupancy could only be interfered with or determined by the
   United States. It is to be presumed that in this matter the United
   States would be governed by such considerations of justice as would
   control a Christian people in their treatment of an ignorant and
   dependent race. Be that as it may, the propriety or justice of
   their action towards the Indians with respect to their lands is a
   question of governmental policy, and is not a matter open to
   discussion in a controversy between third parties, neither of whom
   derives title from the Indians.

(83) People v. LeBlanc, 248 N.W. 2d 199, 206 (1976).

(84) "The corollary of the power of the United States to extinguish the Indian's aboriginal title is the power of the United States to determine which Indian tribes rightfully held aboriginal title." Cramer v United States, 261 U.S. 219, 227 (1923).

(85) State v. Buchanan, 941 P.2d 683 (Wash. App. Div. 1997)

(86) "The failure to ratify the treaty or statutory agreement does not necessarily preclude the incorporation of the aboriginal rights mentioned because the historical circumstances may be construed as an implied promise on the part of the federal government to protect such rights." Worcester v. Georgia, 31 U.S. 515, 566 (1832).

(87) Id.

(88) Antoine v. Washington, 420 U.S. 194 (1975); United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188 (1876) (rejecting the argument that Minnesota's sovereignty is infringed by enforcement of a treaty provision which made a federal law prohibiting the sale or introduction of liquor applicable to lands ceded in the treaty).

(89) Indian title cannot be encumbered or taken by third parties but has no constitutional protection against federal seizure or extinguishment. However, the Court of Claims does have statutory authority to determine claims based on Indian title. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 275 n.4 (1955); Oneida Nation of New York v. New York, 414 U.S. 661 (1974).

(90) Tribes may bring suit against the states for prospective injunctive relief against violations of their federal treaty rights. However the Eleventh Amendment, which bars suits "against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State", prevents the state from being sued in federal court for money damages relating to its interference with hunting, fishing and gathering rights. Seminole Tribe v. Florida, 517 U.S. 44 (1996); Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253 (1995). Thus, the United States must join a suit for monetary damages due to state interference with hunting, fishing and gathering rights if money damages are to be awarded. Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 749 F. Supp. 913 (W.D. Wis. 1990).

(91) In the mid-1911' century a federal question concerning land would be resolved in a manner consistent with Justice Story's Commentaries on the Conflict of Laws. See Thomas Lund, The 1837 and 1855 Chippewa Treaties in the Context of Early American Wildlife Laws, in Fish in the Lakes, Wild Rice, and Game in Abundance: Testimony on Behalf of Mille Lacs Ojibwe Hunting and Fishing Rights 486, 490 (James McClurken et al. eds., 2000). In Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784, 834 (D. Minn. 1994), the Court held:

   An understanding of the general historical circumstances in 1837
   indicates that a similar right was conveyed by the United States in
   the 1837 treaty. In the nineteenth century the public was allowed
   to hunt, fish, and gather on all lands not developed, enclosed or
   posted. An abundant amount of land was open for these purposes, and
   the drafters of the 1837 treaty would not have focused on whether
   the Chippewa would have access to land to hunt, fish, and gather.
   The 1837 treaty does not mention access or entry. 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

(92) Mille Lacs Band of Chippewa Indians v. Minnesota (Mille Lacs II), 861 F. Supp. 784, 836 (D. Minn. 1994).

(93) While the reservation of right to harvest off-reservation does not impliedly provide access rights, in those treaties where a right of access is reserved, such as in the Pacific Northwest treaties, the access right reserved in the treaty is a servitude upon the land which allows tribal members access to their customary fishing grounds as well as a right to harvest a fair share of fish. The signatory tribes may have access to land within the described boundaries to harvest resources and they may remove the resource once harvested for their own use. In this sense, the use right is essentially a profit a prendre limited to tribal members. However, it is not the same as a "several" profit a prendre as described in property law because the profit, while it is enjoyed by tribal members, does not include the owner of the servient land. See Jonathan Gaunt & Paul Morgan, Gale on Easements 75-77 (16th ed. 1977).

(94) Idaho v. Cutler. 708 P.2d 853, 855 (Idaho 1985).

(95) Id at 857.

(96) Id. at 859.

(97) The dissenters (Bistline and Huntley, JJ.) in Cutler, 708 P.2d 853, 863 argued that the majority decision was contrary to precedent and the canons of treaty construction. They concluded "that both parties to the 1868 Fort Bridger Treaty understood "unoccupied" to mean those areas where hunting would not interfere with the white settlers." Moreover, they noted that the indicia of occupancy found to be determinative by the majority, for example fencing, government signs, forest service stations, campgrounds, flood control and water conservation projects, also existed on national forest land.

(98) Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784, 834 (D. Minn. 1994). The Court in Lac Courte Oreilles Band v. Wisconsin (LCO III), 653 F. Supp. 1420, 1432 (W.D. Wis. 1987) however protested against the Court of Appeals holding that the usufructuary right under the 1837 treaty was diminished by settlement. Doyle J. wrote:

   Free of any direction by the court of appeals on the point, I would
   find that in 1837 and 1842 the Chippewa did not understand that
   their reserved usufructuary rights could be diminished or
   eliminated lawfully under those treaties unless a removal was
   properly ordered. In my actual findings, above, I have limited this
   proposition in an effort to be obedient to the court of appeals,
   but without excessive violence to the factual record. I have found,
   and now repeat, that the Chippewa understanding in 1837 and 1842
   was that in the absence of a lawful removal order or in the absence
   of fresh agreement on their part, settlement and private ownership
   of parcels by non-Indians would not require the Chippewa to forego
   anywhere or in any degree exercise of their reserved usufructuary
   rights necessary to assure that, when the exercise of those rights
   was combined with trading with non-Indians, the Chippewa would
   enjoy a moderate living within the entire ceded territory.

(99) United States vs. Peterson, 121 F. Supp. 2d 1309 (D.C. Mont, 2000).

(100) United States v. Hicks, 587 F. Supp. 1162 (W.D. Wash. 1984) (Olympic National park lands are not "open and unclaimed" to which reserve off-reservation hunting privilege set forth in Treaty of Olympia attaches).

(101) Cohen's Handbook of Federal Indian Law 3-17 (Neil Newton ed., 2012).

(102) Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n (Fishing Vessel), 443 U.S. 658, 675 (1979).

(103) As pointed out earlier, in order to achieve a negotiating advantage the United States would often argue that the tribe was a single political unit because of the separate bands shared ethnology and language. In fact, individual bands were often politically divided.

(104) The issue of "recognition", however, does not mean that the Executive branch must accept and specifically recognize that the tribe exists before the tribe can hold any legal rights. Many statutes provide services and legal protection to "Indians" or "any ... tribe of Indians" which import ethnological, racial or social criteria into a determination of what is a tribe for particular purposes. For example, in Joint Tribal Council Of The Passamaquoddy Tribe et al. v. Maine et al., 528 F.2d 370 (1975) the First Circuit Court of Appeals stated that the Passamaquoddy were entitled to federal protection under the Indian Nonintercourse Act.

(105) United States v. Suquamish Indian Tribe, 901 F.2d 772 at 776 (9th Cir. 1990).

(106) Wahkiakum Band of Chinook Indians v. Bateman, 655 F.2d 176 (9th Cir. 1981).

(107) "A tribe's right to define its own membership for tribal purposes has long been recognized as central to its existence as an independent political community." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 (1978). Tribal membership requirements vary widely across the United States but generally most tribes define membership within their constitution and have implemented a tribal role. Cohen's Handbook of Federal Indian Law 21-23 (Neil Newton ed., 2012).

(108) The United States v. Rogers, 45 U.S. 567 (1846) (white man adopted by Indian tribe subject to federal jurisdiction and law). The authors of Cohen's Handbook of Federal Indian Law 3-17 (Neil Newton ed., 2012) note that: "Recognizing the diversity included in the definition of Indian, there is nevertheless some practical value for legal purposes in a definition of Indian as a person meeting two qualifications: (a) that some of the individual's ancestors lived in what is now the United states before its discovery by Europeans, and (b) that the individual is recognized as an Indian by his or her tribe or community." Cohen's Handbook of Federal Indian Law 19-20 (Neil Newton ed., 2012).

(109) Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

(110) Nevada v. Hicks, 533 U.S. 353 (2001); Montana v. United States, 450 U.S. 544 (1981).

(111) United States v. Alcea Band of Tillamooks, 329 U.S. 40, 46 (1946). The full sentence by Chief Justice Vison reads: "As against any but the sovereign, original Indian title was accorded the protection of complete ownership; but it was vulnerable to affirmative action by the sovereign, which possessed exclusive power to extinguish the right of occupancy at will."

(112) United States v. Shoshone Tribe, 304 U.S. 111, 177 (1938).

(113) Cohen's Handbook of Federal Indian Law 491 (Neil Newton ed., 2012).

(114) Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784, 838 (D. Minn. 1994). The Court in Lac Courte Oreilles Band v. Wisconsin (LCO III), 653 F. Supp. 1420, 1430 (W.D. Wis. 1987) also held that the 1837 reserved rights provided for a wide scale and differentiated natural resource harvesting:

   [P]laintiffs have the right to exploit virtually all the natural
   resources in the ceded territory, as they did at treaty time....
   Subject to agreements they may reach with the state of Wisconsin,
   or to unilateral action by the Congress state of Wisconsin, or to
   unilateral action by the Congress, and subject to current and
   lawful state regulation, they may exploit these natural resources
   anytime. Plaintiffs are not confined to the hunting and fishing
   methods their ancestors relied upon at treaty time. The method of
   exercise of the right is not static. Plaintiffs may take advantage
   of improvements in the hunting and fishing techniques they employed
   in 1842.... Plaintiffs assert, and defendants dispute, that the
   Chippewa commercially disposed of a substantial part of the fish
   and game they obtained by fishing and hunting during the treaty
   era. Plaintiffs assert they are free now commercially to dispose of
   fish and game they obtain by off-reservation fishing and hunting
   performed under the treaties. Specifically, they assert they may
   now trade and sell to non-Indians, in the modern manner, from their
   current harvests. Their assertion is valid. The Chippewa were
   clearly engaged in commerce throughout the treaty era. Commercial
   activity was a major factor in Chippewa subsistence.

(115) United States v. Washington, 157 F.3d 630 (1998).

(116) United States v. Choctaw Nation, 179 U.S. 494, 533 (1900).

(117) Choctaw Nation v. United States, 318 U.S. 423, 431-32 (1943).

(118) The textual basis need not be in the particular instrument that is subject to the litigation but can be found in previous or subsequent treaties or agreements with the tribe. Oregon Department of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985). The idea that off-reservation rights need to have a textual basis contrasts with the situation within the reservation where it is assumed that the tribe has retained all uses related to unextinguished aboriginal title. See Menominee Indian Tribe of Wisconsin v. Thompson, 943 F. Supp. 999 (W.D. Wis. 1996). The explicit reservation is consistent with the presumption articulated in Johnson v. M'Intosh, 21 U.S. 543 (1823) that the Native American interest is a burden upon the underlying American title. In any conveyance of Indian title, it is assumed that the underlying intent of the United States and the Native American understanding was the conveyance of all possession and use the territory. As Justice Holmes noted in another context, "Whatever consideration may have been shown to the North American Indians, the dominant purpose of the whites in America was to occupy the land." Carino v. The Insular Government of the Philippine Islands, 212 U.S. 449, 458 (1909). The recognition of reserved rights in the transaction was a necessary concession by the United States to achieve the agreement. Thus a legal conveyance by the tribe would unite all land interests in the United States, absent a reservation by the tribe. Where the rights have been reserved the presumption then shifts to the idea that the United States intended to preserve previous reserved rights absent an explicit extinguishment.

(119) Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 353 (1945).

(120) Kimball v. Callahan, 493 F.2d 564, 566 (9th Cir.), cert, denied, 419 U.S. 1019 (1974).

(121) Lac Courte Oreilles Band v. Wisconsin (LCO IX), 758 F. Supp. 1262, 1270 (W.D. Wis. 1991).

(122) Id. However, it should be noted that the right is not restricted to specific species or specific methods unless there is limiting language in the agreement. Consistent with their aboriginal title, a tribe had an absolute right to harvest any species it desired. The fact that some species were not taken before treaty time because they were inaccessible or the Native American chose not to take them, does not mean that the Indians' right to harvest the natural resources was similarly limited. See United States v. Washington, 157 F.3d 630, 644 (9th Cir. 1998).

(123) "A treaty must ... 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." Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n (Fishing Vessel), 443 U.S. 658, 676 (1979).

(124) Minnesota v. Mille Lacs Band of Chippewa Indians (Mille Lacs), 526 U.S. 172, 196 (1999).

(125) United States v. Winans, 198 U.S. 371, 380 (1905).

(126) Discussing the negotiations leading to the 1855 Treaty the Court in Mille Lacs Band of Chippewa Indians v. Minnesota (Mille Lacs II), 861 F. Supp. 784 (D. Minn. 1994) observed:

   The statements of the Chippewa during the treaty negotiations also
   indicate that they would continue to hunt, fish, and gather after
   the treaty was negotiated. See, e.g., 1855 Treaty Journal at frs.
   440, 445, and 446 (discussing whether the Chippewa could receive
   their annuity payments in early September when it would not
   interfere with their other activities). Not even Hole-in-the-Day
   [authors note: a leading proponent of the Chippewa assuming a more
   sedentary lifestyle similar to the settlers] would have considered
   abandoning the traditional way of life immediately because
   transition to an agricultural society would take a very long time.

(127) Lac Courte Oreilles Band v. Wisconsin (LCO IX), 758 F. Supp. 1262, 1270 (W.D. Wis. 1991).

(128) Id.

(129) Id.

(130) Id. at 1271.

(131) Richard White & William Cronon, Ecological Change and Indian-White Relations, in The Handbook of North American Indians, History of Indian-White Relations Vol 4, 417 (Wilcomb Washburn, ed., 1982); James E. Fitting, Patterns of Acculturation at the Straits of Mackinac, in Cultural Change and Continuity Essays in Honor of James Bennett Griffin 321 (Charles E. Cleland ed., 1976).

(132) The Court in Lac Courte Oreilles Band v. Wisconsin (LCO VII), 740 F. Supp. 1400, 1415 (W.D. Wis. 1990) stated:

   [The Chippewa] were aware that settlement by non-Indians had
   occurred and was occurring.... The Chippewa would be competing to
   some degree with the non-Indians for the kind of natural resources
   the Chippewa had been exploiting. This competition and
   accommodation would be on a scale which would not threaten in any
   degree the moderate living the Chippewa would continue to enjoy
   from the exercise of their usufructuary rights and their trading.
   This guarantee was permanent.... In the absence of a lawful removal
   order or in the absence of fresh agreement on the part of the
   Chippewa, the presence of non-Indian settlers would not require the
   Chippewa to forego in any degree that level of hunting, fishing,
   and gathering, and that level of trading necessary to provide them
   a moderate living off the land and from the waters in and abutting
   the ceded territory and throughout that territory.... The Chippewa
   at treaty time did contemplate their subsistence and did understand
   that the usufructuary rights they reserved would be sufficient to
   provide them with a moderate living.

(133) Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n (Fishing Vessel), 443 U.S. 658, 686 (1979).

(134) Doyle, J. in Lac Courte Oreilles Band v. Wisconsin (LCO III), 653 F. Supp. 1420, 1424 (W.D. Wis. 1987) reflected on the moderate living standard as it relates to the Treaty of 1837:

   The Chippewa relied on hunting and gathering for their subsistence.
   They harvested resources for their own immediate, personal use and
   for use as trade goods in commerce. The Chippewa traded goods for
   items which contributed to their subsistence. Neither in harvesting
   resources for commercial purposes nor in harvesting resources for
   their own use did the Chippewa strive for more than a moderate,
   satisfactory living. They were indifferent to acquiring wealth
   beyond their immediate needs.

(135) Sohappy v. Smith, 302 F. Supp. 899, 905 (D. Or. 1969) (stating fishing "still provides an important part of [tribal] subsistence and livelihood"); United States v. Washington, 384 F. Supp. 312, 340 (W.D. Wash. 1974) (noting that the right to fish "is the single most highly cherished interest and concern of the present members of plaintiff tribes") and at 357-58 (noting present subsistence, cultural and economic role of fishing to tribes).

(136) Tulee v. Washington, 315 U.S. 681, 684 (1942). As to the permissible scope of state regulation see also Puyallup Tribe of Indians v. Washington (Puyallup I), 391 U.S. 392 (1968); Dep't of Game of Washington v. Puyallup Tribe (Puyallup II), 414 U.S. 44 (1973).

(137) Puyallup II, 414 U.S. at 49 (stating that the Treaty of Medicine Creek protects commercial net fishing by Indians); United States v. Michigan, 471 F. Supp. 192 (W.D. Mich. 1979) (stating that the Treaty of 1836 reserves the right to fish in area of the Great Lakes ceded to United States without state regulation).

(138) Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n (Fishing Vessel), 443 U.S. 658, 684-85 (1979).

(139) Id. at 686.

(140) Id. at 687.

(141) Lac Courte Oreilles Band v. Wisconsin (LCO V), 686 F. Supp. 226 (W.D. Wis. 1988).

(142) United States v. Washington, 873 F. Supp. 1422 (W.D. Wash. 1994) (addressing that the treaty right to take fish "in common with all citizens of the territory.... provided, however, that they shall not take shellfish from any beds staked or cultivated by citizens" provides the tribes with the right to take shellfish from natural beds).

(143) Id.

(144) Mille Lacs Band of Chippewa Indians v. Minnesota (Mille Lacs IV), 952 F. Supp. 1362, 1393 (D. Minn. 1997).

(145) Mary Christina Wood, The Tribal Property Right To Wildlife Capital (Part II): Asserting A Sovereign Servitude To Protect Habitat Of Imperiled Species, 25 Vt. L. Rev. 355, 413 (2001).

(146) The Conservation Code enacted by a tribe may include provisions for state enforcement of its code. Mille Lacs IV, 952 F. Supp. at 1366-7.

(147) Nevada v. Hicks, 533 U.S. 353 (2001).

(148) The Court in New Mexico v. Mescalero Apache Tribe (New Mexico), 462 U.S. 324, 333-34 (1983) stated:

   Although a State will certainly be without jurisdiction if its
   authority is pre-empted under familiar principles of pre-emption,
   we cautioned that our prior cases did not limit pre-emption of
   state laws affecting Indian tribes to only those circumstances.
   "The unique historical origins of tribal sovereignty" and the
   federal commitment to tribal self-sufficiency and
   self-determination make it "treacherous to import ... notions of
   pre-emption that are properly applied to ... other [contexts] ...
   By resting pre-emption analysis principally on a consideration of
   the nature of the competing interests at stake, our cases have
   rejected a narrow focus on congressional intent to pre-empt state
   law as the sole touchstone. They have also rejected the proposition
   that pre-emption requires "an express congressional statement to
   that effect." State jurisdiction is pre-empted by the operation of
   federal law if it interferes or is incompatible with federal and
   tribal interests reflected in federal law, unless the state
   interests at stake are sufficient to justify the assertion of state

I owe this idea to Laurence Tribe, American Constitutional Law Vol. I at 1173-79 (3d ed., 2000).

(149) Puyallup Tribe of Indians v. Washington (Puyallup I), 391 U.S. 392, 402 n.14 (1968).

(150) People v. LeBlanc, 248 N.W. 2d 199 (1976).

(151) The Court in United States v. Choctaw Nation, 179 U.S. 494, 532-335 (1900) stated:

   But in no case has it been adjudged that the courts could by mere
   interpretation or in deference to its view as to what was right
   under all the circumstances, incorporate into an Indian treaty
   something that was inconsistent with the clear import of its words.
   It has never been held that the obvious, palpable meaning of the
   words of an Indian treaty may be disregarded because, in the
   opinion of the court, that meaning may in a particular transaction
   work what it would regard as injustice to the Indians. That would
   be an intrusion upon the domain committed by the Constitution to
   the political departments of the Government.... We are to find out
   the intention of the parties by just rules of interpretation
   applied to the subject-matter; and, having found that, our duty is
   to follow it as far as it goes and to stop where that
   stops--whatever may be the imperfections or difficulties which it
   leaves behind.... In the next place, this court is bound to give
   effect to the stipulations of the treaty in the manner and to the
   extent which the parties have declared, and not otherwise. We are
   not 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. The terms which the
   parties have chosen to fix, the forms which they have prescribed,
   and the circumstances under which they are to have operation, rest
   in the exclusive discretion of the contracting parties, and whether
   they belong to the essence or the modal part of the treaty, equally
   give the rule to the judicial tribunals.

See also United States v. State of Washington, 157 F.3d 630 (9th Cir. 1998).

(152) Lac Courte Oreilles Band v. Wisconsin (LCOIV), 668 F. Supp. 1233, 1237 (W.D. Wis. 1987).

(153) See Mille Lacs Band of Chippewa Indians v. Minnesota, 861 F. Supp. 784, 839 (D. Minn. 1994 ("The State may not impose its own regulations if the Band can effectively self-regulate and if tribal regulations are adequate to meet conservation, public health, and public safety needs.").

(154) Puyallup Tribe of Indians v. Washington (Puyallup I), 391 U.S. 392, 398 (1968). Thus the standard set forth in Tulee v. Washington, 315 U.S. 681 (1942), which emphasizes equal treatment in the time and manner is presumably no longer the applicable standard because the Court will scrutinize the impact on Indians as it relates to the guaranteed harvest right. In Tulee, 315 U.S. at 684, the Court states that:

   [T]he treaty leaves the state with 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, [but] it
   forecloses the state from charging the Indians a fee of the kind in
   question here.

The analysis presupposes that the federal right has priority over all other uses because disproportionate impact on Indians is not only measured against non-Indian users but also against absolute use rights reserved in the treaty or agreement.

(155) Dep't of Game of Washington v. Puyallup Tribe (Puyallup II), 414 U.S. 44, 49 (1973):

   We do not imply that these [Indian treaty] fishing rights persist
   down to the very last steelhead in the river. Rights can be
   controlled by the need to conserve a species; and the time may come
   when the life of a steelhead is so precarious in a particular
   stream that all fishing should be banned until the species regains
   assurance of survival. 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.

See also Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 391 (1978); Antoine v. Washington, 420 U.S. 194, 206-07 (1975); Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968); Lac Courte Oreilles Band v. Wisconsin (LCO IV), 668 F. Supp. 1233, 1235-36 (W.D. Wis. 1987).

(156) Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n (Fishing Vessel), 443 U.S. 658, 682 (1979) (citing Antoine, 420 U.S. at 207-08).

(157) LCO IV, 668 F. Supp. at 1241-42.

(158) Mille Lacs Band of Chippewa Indians v. Minnesota (Mille Lacs IV), 952 F. Supp. 1362, 1369 (D. Minn. 1997) (citing LCO IV, 668 F. Supp. at 1239).

(159) Id.

(160) Id.

(161) Id.

(162) Gordon Christie, A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation, 23 Windsor Y.B. Access Just. 17 (2005) [hereinafter Christie, A Colonial Reading]; for a general discussion of treaty abrogation see Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: As Long as Water Flows, or Grass Grows upon the Earth--How Long a Time is That, 63 Calif. L. Rev. 601 (1975).

(163) Western Shoshone National Council v. Molini, 951 F.2d 200, 202-03 (9th Cir. 1999).

(164) "Only Congress can abrogate an Indian treaty right by expressing that intention clearly and plainly." United States v. Dion, 476 U.S. 734, 738 (1986). The Constitution does not provide the President with the power to remove Indian tribes or to abrogate rights guaranteed under treaties as Congress has plenary authority over Indian affairs: see Warren Trading Post v. Arizona Tax Commission, 380 U.S. 685 (1965). Whatever authority the executive branch has over Indian affairs is provided either explicitly or implicitly from congressional authorization. Minnesota v. Mille Lacs Band of Chippewa Indians (Mille Lacs), 526 U.S. 172, 188-89(1999).

(165) Beecher v. Wetherby, 95 U.S. 517 (1877).

(166) Lac Courte Oreilles Band v. Voight (LCO I), 700 F.2d 341, 351 (7th Cir. 1983).

(167) "The power of Congress in that regard is supreme. The manner, method and time of such extinguishment raise political, not justiciable, issues. As stated by Chief Justice Marshall in Johnson v. M'Intosh, 21 U.S. 543 (1823):

   [T]he exclusive right of the United States to extinguish" Indian
   title has never been doubted. And whether it be done by treaty, by
   the sword, by purchase, by the exercise of complete dominion
   adverse to the right of occupancy, or otherwise, its justness is
   not open to inquiry in the courts.

Quoted in United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 347 (1941)).

(168) Minnesota v. Mille Lacs Band of Chippewa Indians (Mille Lacs), 526 U.S. 172, 199 (1999). The standard similarly applies to rights reserved in statutory agreements or executive orders. See also Bryan v. Itasca County, 426 U.S. 373 (1976); Antoine v. Washington, 420 U.S. 194(1975).

(169) Washington v. Wash. State Commercial Passenger Fishing Vessel Ass'n (Fishing Vessel), 443 U.S. 658, 690 (1979).

(170) United States v. Dion, 476 U.S. 734, 740 (1986).

(171) Minnesota v. Mille Lacs Band of Chippewa Indians (Mille Lacs), 526 U.S. 172, 195-96 (1999).

(172) Wilkinson & Volkman, supra note 162, at 623-34.

(173) Dion, 476 U.S. at 739-40.

(174) Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968).

(175) The Menominee Termination Act was enacted pursuant to the 1954 Termination Act. The 1954 Act established a mechanism to "to provide for orderly termination of Federal supervision over the property and members" of a tribe. Under its provisions, the tribe was to formulate a plan for future control of tribal property and service functions theretofore conducted by the United States. Once approved, the tribe's relationship with the federal government would be severed and its property and members would become subject to the law of the state within which their reservation was located. Local governance structures in the state would be extended into the former reservation. See id. at 408-11.

(176) Id. at 410.

(177) Id.

(178) Id. at 410-11 (emphasis in original).

(179) Id. at 413.

(180) 163 U.S. 504 (1896).

(181) "[W]e note that there is nothing inherent in the nature of reserved treaty rights to suggest that they can be extinguished by implication at statehood. Treaty rights are not impliedly terminated upon statehood." Id. at 207 (emphasis in original).

(182) Minnesota v. Mille Lacs Band of Chippewa Indians (Mille Lacs), 526 U.S. 172, 206-07 (1999).

(183) Id. at 219.

(184) R. v. Sikyea, (1964) 43 D.L.R. (2d) 150 (N.W.T. C.A.), aff'd [1964] S.C.R. 642 (Can.).

(185) R. v. Cote, [1996] 3 S.C.R. 139, 170; see Sidney L. Harring, White Man's Law: Native People in Nineteenth-century Canadian Jurisprudence 122 (1998). There probably was a common law right to fish in 19th century Ontario on water adjacent to Crown lands or on major waterways that applied to aboriginals and Europeans. Roland Wright, The Public Right of Fishing, Government Fishing Policy, and Indian Fishing Rights in Upper Canada, 86 Ont. Hist. 337 (1994). See also Canada v. Robertson (1882), 6 S.C.R. 52 (Can.).

(186) James R. Miller, Skyscrapers Hide the Heavens A History of Indian-White Relations in Canada 137 (3d ed. 2000) (statement of William Benjamin Robinson, reporting to the Superintendent General of Indian Affairs regarding treaties with the Ojibwa of Northern Ontario) ("In allowing the Indians to retain reservations of land for their own use 1 was governed by the fact that they had in most cases asked for such tracts as they had heretofore been in the habit of using for purposes of residence and cultivation, and by securing these to them and the right of hunting and fishing over the ceded territory, they cannot say that the Government takes from their usual means of subsistence and they have no claims for support, which they not doubt would have preferred had this not been done.").

(187) Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 S.C.C. 69, para. 26 (Can.).

(188) R. v. Jack, [1980] 1 S.C.R. 294, 307-13 (Can.).

(189) R. v. Isaac (1975), 13 N.S.R. 2d 460, 484-85 (N.S. C.A.) (Can.).

(190) See, e.g., R. v. Taylor and Williams, (1981) 34 O.R. 2d 360 (Ont. C.A.) (Can.). The Taylor and Williams case concerned a Treaty No. 20 where some Bands of Chippewa ceded land to around Lake Simcoe, Upper Canada (now Ontario) to the Crown. The treaty text was silent as to hunting and fishing in the area after the cession. The treaty minutes showed that the Crown negotiator had promised them: "The Rivers (author's omission) are open to all & you have an equal right to fish and hunt on them." Id. para. 7.

(191) There was substantial litigation regarding the effect of unilateral reservations of land and other rights made by colonial and military officials as well as agreements which did not have the formalities associated with treaties. See R. v. Sioui, [1990] 1 S.C.R. 1025 (Can.) Historical context surrounding 1760 document signed by British General Murray which made peace with Hurons and guaranteed additional rights are a treaty under Section 88 of Indian Act. See e.g., Harring, supra note 185, at 35-61 on the continuing Six Nation land claims under the 1784 Haldimand grant along the Grand River in Ontario. The agreements signed with the various tribes of Vancouver Island have also been subject to litigation regarding their status as "treaties." See also R. v. White and Bob (1965), 50 D.L.R. 2d 613 (B.C.C.A.) (Can.), aff'd, (1965), 52 D.L.R. 2d 481 (S.C.C.) (Can.) (addressing the agreement between members of the Saalequun tribe and Governor Douglas of British Columbia, dated December 23, 1854, which gave the right to hunt for food over the land a "treaty" for purposes of Sec. 87 [now 88] of Indian Act.).

(192) Perhaps the most significant exception in early Canadian legal history is Connolly v. Woolrich, [1867] 1 C.N.L.C. 70 (Que. Super. Ct.) (Can.). The dispute concerned the relative rights of the children of William Connolly to his estate. Connolly married a Cree woman in the Athabaska area in 1803 under Cree law. He had six children from this marriage. He later moved to Montreal where he remarried under Quebec law and had two children. Monk, J ruled that the Cree marriage and by extension Cree law survived the assertion of British (and French) sovereignty and that the Doctrine of Discovery did not annul the pre-existing rights and law of the inhabitant tribes. This state of affairs was not changed by the Proclamation of 1763, any other subsequent law, nor Connolly's own actions as a British subject. "It is easy to conceive," Monk, J. noted, "in the case of joint occupation of extensive countries by Europeans and native nations or tribe, that two different systems of civil and even criminal law may prevail." Id. at 90. As such:

   When Connolly went to Athabaska, in 1803, he found the Indian
   usages as they had existed for ages, unchanged by European power or
   Christian legislation. He did not take English law with him, for
   his settlement there was not preceded by discoveries made either by
   himself or English adventurers, nor was it an uninhabited or
   unoccupied territory. This pretension ... to the exclusion of the
   laws and customs of the natives, the common law of England prevail
   at Rat River in 1803, or in any subsequent period, must be
   over-ruled, and in doing so the Court may remark that it was not
   competent in any case for Mr. Connolly to carry with him this
   common law of England to Rat River in his knapsack, and much less
   could he bring back to Lower Canada the law of repudiation in a
   bark canoe.

Id. at 91. Cree law therefore governed the marriage and that marriage must be recognized in British courts:

   The supreme authority of the empire, in not abolishing or altering
   the Indian law, and allowing it to exist for one hundred years
   (since the Hudson's Bay Charter of 1670) impliedly sanctioned it,
   and 2nd. The sovereign power in these matters, by proclamation, has
   tacitly acknowledged these laws and usages of the Indians to be in
   force, and so long as they are in force as a law in any part of the
   British empire or elsewhere, this Court must acknowledge and
   enforce them. Id. at 132.

(193) St. Catherine's Milling and Lumber Co. v. The Queen, [1888] 14 App. Cas. 46, para. 6 (P.C.) (appeal taken from Can.)

(194) R. v. Sparrow, [1990] 1 S.C.R. 1075, 1098 (Can.) (quoting Mahoney J. in Baker Lake v. Ministry of Indian Affairs and Northern Development, [1980] 1 F.C. 518, 568 (T.D.) (Can.)). The Sparrow Court noted that the regulation of an aboriginal right does not necessarily extinguish the right and that the burden for proving extinguishment rested on the Crown. Id. at 1098-99.

(195) Francis v. The Queen, [1956] S.C.R. 618 (Can.) (treaty between United Kingdom and United States granting customs exemptions to aboriginals not enforceable because treaty provisions not enacted into statute).

(196) In Sero v. Gault, [1921] 64 D.L.R. 327, 331-32 (Can.) (citations omitted), Riddell, J., was representative of the judiciary's generally dismissive attitude toward treaty rights when he stated:

   As to the so-called treaties, John Beverly Robinson,
   Attorney-General for Upper Canada (afterwards Sir John
   Beverley-Robinson C.J.), in an official letter to Robert Wilmot
   Horton, Under Secretary of States for War and Colonies, March 14,
   1824, said: "To talk of treaties with the Mohawk Indians, residing
   in the heart of one of the most populous districts of Upper Canada,
   upon lands purchased for them and given to them by the British
   Government, is much the same, in my humble opinion, as to talk of
   making a treaty of alliance with the Jews in Duke street or with
   the French emigrants who have settled in England" ... I cannot
   express my own opinion more clearly or convincingly.

Robinson subsequently served as Chief Justice of Upper Canada from 1829 to 1862. There are thirteen reported aboriginal law decisions by Robinson which are an important foundational component to common law aboriginal rights in Canada.

(197) R. v. George, [1966] S.C.R. 267 (Can.).

(198) Krugerv. The Queen, [1978] 1 S.C.R. 104. 111-12 (Can.).

(199) R. v. Sparrow, [1990] 1 S.C.R. 1075, 1106 (Can.) (citations omitted) (quoting Professor Noel Lyon, An Essay on Constitutional Interpretation, 26 OSGOODE HALL L.J. 95 (1988)).

(200) Aboriginal and Treaty rights may not be unilaterally extinguished. The consent of the aboriginal peoples is required.

(201) "The thread of continuity between these events, it seems, is that the Mi'kmaq people have sustained themselves in part by harvesting and trading fish (including eels) since Europeans first visited the coasts of what is now Nova Scotia in the 16th century." R. v Marshall (Marshall I), [1999] 3 S.C.R. 456, para. 2 (Can.). The 1999 Marshall I decision was comprised of two separate opinions, the main opinion (McLachlin and Gonthier JJ. dissenting) and an opinion dismissing an application for rehearing in which the Court clarified the previous decision. The original Supreme Court decision was delivered September 17, 1999. Id. The Court rendered the motion decision unanimously dismissing the application for rehearing on November 17, 1999 that is found at R. v. Marshall (Marshall II), [1999] 3 S.C.R. 533 (Can.). The decision rendered on the issue of treaty protected commercial logging is dealt with in R. v. Marshall (Marshall III); R. v. Bernard, 2005 SCC 43, [2005] S.C.R. 220 (Can.).

(202) Thus in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 144 (Can.), the Court noted that:

   In order to establish a claim to aboriginal title, the aboriginal
   group asserting the claim must establish that it occupied the lands
   in question at the time at which the Crown asserted sovereignty
   over the land subject to the title. In the context of aboriginal
   title, sovereignty is the appropriate time period to consider for
   several reasons. First, from a theoretical standpoint, aboriginal
   title arises out of prior occupation of the land by aboriginal
   peoples and out of the relationship between the common law and
   pre-existing systems of aboriginal law. Aboriginal title is a
   burden on the Crown's underlying title. The Crown, however, did not
   gain this title until it asserted sovereignty and it makes no sense
   to speak of a burden on the underlying title before that title
   existed. Aboriginal title crystallized at the time sovereignty was
   asserted. Second, aboriginal title does not raise the problem of
   distinguishing between distinctive, integral aboriginal practices,
   customs and traditions and those influenced or introduced by
   European contact. Under common law, the act of occupation or
   possession is sufficient to ground aboriginal title and it is not
   necessary to prove that the land was a distinctive or integral part
   of the aboriginal society before the arrival of Europeans. Finally,
   the date of sovereignty is more certain than the date of first

(203) Marshall III, 2005 SCC 43, para. 132 (LeBel, J. concurring).

(204) As the result of cession to the British Crown by former potentates, the radical title is now in the British Sovereign. But that title is throughout qualified by the usufructuary rights of communities, rights which, as the outcome of deliberate policy, have been respected and recognized. Even when machinery has been established for defining as far as is possible the rights of individuals by introducing Crown grants as evidence of title, such machinery has apparently not been directed to the modification of substantive rights, but rather to the definition of those already in existence and to the preservation of records of that existence. See Amodu Tijani v. Southern Nigeria (Secretary), [1921] 2 A.C. 399, 404 (P.C.) (appeal taken from Nigeria).

(205) R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 112 (Can.).

(206) See Brian Slattery, Understanding Aboriginal Rights, 66 Can. B. Rev. 727, 738-39 (1987).

(207) In Van der Peet, [1996] 2 S.C.R. 507, para. 30, the Supreme Court of Canada observed: [T]he doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.

(208) An example of a provincial statute recognizing the claims of tribes who are occupying the territory is House of Assembly of Upper Canada 2 Vic., Ch. 15 relating to Indian Commissioners. See Little v. Keating, [1842] 6 U.C.Q.B. (O.S.) 265 (Can. Ont.).

(209) The latest pre-Confederation treaties were made by the Province of Canada. They include the Robinson-Huron Treaty and the Robinson-Superior Treaty of 1850 and the Manitoulin Island Treaty of 1862.

(210) Rupert's Land and North-Western Territory Order, 1985 R.S.C. App. II, No. 9, Schedule B at 12 (Can.).

(211) The Natural Resource Transfer Acts for Saskatchewan (now titled the Constitution Act, 1930, 20-21 George V, c. 26 (U.K.), reprinted in R.S.C. 1985, App. II, No. 26 (Can.)) (clause 12), Alberta (clause 12) and Manitoba (clause 13) have the following wording:

   In order to secure to the Indians of the Province the continuance
   of the supply of game and fish for their support and subsistence,
   Canada agrees that the laws respecting game in force in the
   Province from time to time shall apply to the Indians within the
   boundaries thereof, provided, however, that the said Indians shall
   have the right, which the Province hereby assures to them, of
   hunting, trapping and fishing game and fish for food at all seasons
   of the year on all unoccupied Crown lands and on any other lands to
   which the said Indians may have a right of access.

Pursuant to s. 1 of the Constitution Act, 1930, 20-21 George V, c. 26 (U.K.), reprinted in R.S.C. 1985, App. II, No. 26 (Can.), the Natural Resource Transfer Acts have constitutional status. See also R. v. Horseman, [1990] 1 S.C.R. 901 (Can.); R. v. Sundown, [1999] 1 S.C.R. 393 (Can.).

(212) Brown v. West, [1846] 1 U.C.E. & A. 117, para. 4 (Can. Ont.).

(213) St. Catherine's Milling & Lumber Co. v. The Queen (1887), 13 S.C.R. 577, 608-09 (Can.). Strong, J., writing in dissent, was more even more emphatic:

   In the Commentaries of Chancellor Kent and in some decisions of the
   Supreme Court of the United States we have very full and clear
   accounts of the policy in question. It may be summarily stated as
   consisting in the recognition by the crown of a usufructuary title
   in the Indians to all unsurrendered lands. This title, though not
   perhaps susceptible of any accurate legal definition in exact legal
   terms, was one which nevertheless sufficed to protect the Indians
   in the absolute use and enjoyment of their lands, whilst at the
   same time they were incapacitated from making any valid alienation
   otherwise than to the crown itself, in whom the ultimate title was,
   in accordance with the English law of real property, considered as
   vested. This short statement will, I think, on comparison with the
   authorities to which I will presently refer, be found to be an
   accurate description of the principles upon which the crown
   invariably acted with reference to Indian lands, at least from the
   year 1756, when Sir William Johnston was appointed by the Imperial
   Government superintendent of Indian affairs in North America, being
   as such responsible directly to the crown through one of the
   Secretaries of State, or the Lords of Trade and Plantation, and
   thus superseding the Provincial Governments, down to the year 1867,
   when the confederation act constituting the Dominion of Canada was
   passed. So faithfully was this system carried out, that I venture
   to say that there is no settled part of the territory of the
   Province of Ontario, except perhaps some isolated spots upon which
   the French Government had, previous to the conquest, erected forts,
   such as Fort Frontenac and Fort Toronto, which is not included in
   and covered by a surrender contained in some Indian treaty still to
   be found in the Dominion Archives.

Strong, J.'s dissent was joined by Gwynne, J. A majority of the Court agreed with the proposition that aboriginals had an interest in the territory they used and occupied.

(214) Aboriginal title is a "personal and usufructuary right, dependent upon the good will of the Sovereign" which is a "burden" on the Crown's "present proprietary estate in the land." St. Catherine's Milling and Lumber Company v. The Queen, [1888] 14 App. Cas. 46 para. 6 (P.C.) (appeal taken from Can.).

(215) Prior to being settled by the Supreme Court of Canada in Calder v. British Columbia (Att'y Gen.), [1973] S.C.R. 313 (Can.) there had been an issue whether aboriginal rights were only created by the Royal Proclamation of 1763 and thus only cognizable in those areas covered by the Proclamation, that is, being limited in content to those activities included in the term "hunting grounds," cited in the text; or whether they existed independently of that prerogative act and thus applying to the entire territory of present day Canada. The Privy Council, by Lord Watson in St. Catherine's Milling & Lumber Co. v. the Queen, suggested that the rights only exist as a result of the Proclamation. In St. Catherine's Milling, [1888] 14 App. Cas. 46 para. 6, his Lordship wrote at para. 6 (emphasis added):

   Whilst there have been changes in the administrative authority,
   there has been no change since the year 1763 in the character of
   the interest which its Indian inhabitants had in the lands
   surrendered by the treaty. Their possession, such as it was, can
   only be ascribed to the general provisions made by the royal
   proclamation in favour of all Indian tribes then living under the
   sovereignty and protection of the British Crown. It was suggested
   in the course of the argument for the Dominion, that inasmuch as
   the proclamation recites that the territories thereby reserved for
   Indians had never "been ceded to or purchased by " the Crown, the
   entire property of the land remained with them. That inference is,
   however, at variance with the terms of the instrument, which shew
   that the tenure of the Indians was a personal and usufructuary
   right, dependent upon the good will of the Sovereign. The lands
   reserved are expressly stated to be "parts of Our dominions and
   territories;" and it is declared to be the will and pleasure of the
   sovereign that, "for the present," they shall be reserved for the
   use of the Indians, as their hunting grounds, under his protection
   and dominion. There was a great deal of learned discussion at the
   Bar with respect to the precise quality of the Indian right, but
   their Lordships do not consider it necessary to express any opinion
   upon the point. It appears to them to be sufficient for the
   purposes of this case that there has been all along vested in the
   Crown a substantial and paramount estate, underlying the Indian
   title, which became a plenum dominium whenever that title was
   surrendered or otherwise extinguished.

Watson's discussion led to a split in the Canadian courts regarding whether the Proclamation created the rights or whether they exist independently at common law. The Court in R. v. Wesley, [1932] 4 D.L.R. 774, para. 48 (Alta. S.C.) (Can.), for example, noted that:

   [W]hether it be called title, an interest, or a burden on the
   Crown's title, the Indians are conceded to have obtained definite
   rights under this proclamation [of 1763] in the territories therein
   mentioned which certainly included the right to hunt and fish at
   will over those lands in which they held an such interest.

Calder, [1973] S.C.R. 313 at 328, 375 settled the issue:

   Although I think that it is clear that Indian title in British
   Columbia cannot owe its origin to the Proclamation of 1763, the
   fact is that when the settlers came, the Indians were there,
   organized in societies and occupying the land as their forefathers
   had done for centuries. This is what Indian title means.... What
   emerges from the foregoing evidence is the following: the Nishgas
   in fact are and were from time immemorial a distinctive cultural
   entity with concepts of ownership indigenous to their culture and
   capable of articulation under the common law....

This view was articulated by the Federal Court of Canada when it noted that "[T]he law of Canada recognizes the existence of an aboriginal title independent of the Royal Proclamation or any other prerogative act or legislation. It arises at common law." Baker Lake v. Ministry of Indian Affairs and Northern Development. [1980] 1 F.C. 518, 556 (T.D.) (Can.). See McNeil, supra note 19, at 267-90. Today there seems little difference between common law aboriginal rights and aboriginal rights affirmed by the Royal Proclamation. However, there probably is a difference when determining the content of the aboriginal rights. Where the land is covered by the Royal Proclamation the relevant date is 1763; in areas not covered by the Proclamation the relevant time period is immediately prior to European contact. See Ontario (Att'y Gen.) v. Bear Island Foundation (1984), 49 O.R. (2d) 353, 379-86 (Can. Ont. H.C.); R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 73 (Can.).

(216) Colder, [1973] S.C.R. at 313 (Can.)

(217) Mitchell v. M.N.R., 2001 SCC 33, para. 10 (Can.).

(218) R. v. Marshall (Marshall III); R. v. Bernard, 2005 SCC 43, para. 127 (Can.).

(219) Id. para. 48.

(220) Id. para. 50.

(221) R. v. Sparrow, [1990] 1 S.C.R. 1075, 1103 (Can.).

(222) I owe this idea to Gordon Christie, Justifying Principles of Treaty Interpretation, 26 Queen's L.J. 143-224 (2000) [hereinafter Christie, Justifying Principles].

(223) The Privy Council in Can. (Att'y Gen.) v. Ont. (Att'y Gen.) (Indian Annuities case) [1897] A.C. 199 (appeal taken from Can.) held that the 1850 Robinson Treaty was nothing more than a personal obligation by its governor and suggested that the use of international law concepts applicable to aboriginal treaties was not appropriate. At para. 14, Lord Watson stated:

   They (the arbitrators) start from the proposition that the treaties
   of 1850, being in the nature of international compacts, ought to be
   liberally construed. That rule when rightly applied, in
   circumstances which admit of its application, is useful and
   salutary, but it goes no farther than this, that the stipulations
   of an international treaty ought, when the language of the
   instrument permits, to be so interpreted as to promote the main
   objects of the treaty. Their Lordships venture to doubt whether the
   rule has any application to those parts, even of a proper
   international treaty, which contain the terms of an ordinary
   mercantile transaction, in which the respective stipulations of the
   contracting parties are expressed in language which is free from
   ambiguity (emphasis added).

(224) R. v. Syliboy, [1929] 1 D.L.R. 307, 313 (Can.).

(225) Simon v. The Queen, [1985] 2 S.C.R. 387, 400 (Can.).

(226) R. V. Van der Peet, [1996] 2 S.C.R. 507, para. 73 (Can.).

(227) See R. v. Sioui, [1990] 1 S.C.R. 1025, 1052-53 (Can.), where the Supreme Court of Canada noted that relations with the tribes were similar to relations between independent states.

(228) Maureen Davies, Aspects of Aboriginal Rights in International Law in Aboriginal Peoples and the Law 16, 24 (Bradford W. Morris, ed., 1985).

(229) England and Imperial Britain had law and policy that in some instances acknowledged the independence, if not sovereignty, of the tribes, while at other times they seemingly refused to accept the notion that tribes were nothing more than temporary occupiers of land under Crown sovereignty. There is considerable evidence that at least until the 1760s the British treated the tribes as sovereign, either in an internal sense, or in an external sense as allies or as associated political organizations bordering British colonies. First, the original colonists seemed to believe that the tribes were sovereign owners of their lands and this idea remained widely held throughout the eighteenth century. Second, the British negotiated many treaties and maintained relationships with the tribes as equal diplomatic partners. For example, in 1761 Sir William Johnson, Imperial Indian Superintendent recognized the independent and equal status of the Six Nations Iroquois with the United Kingdom by entering formally into the 1758 Covenant Chain alliance. This status was confirmed in the 1766 Treaty of Oswego entered into after Pontiac's Rebellion. This war was a military defeat for the tribes but it nevertheless re-established the tribes' equal status with the British and the necessity of diplomatic adjustments of borders and disputes. See Jon William Parmenter, Pontiac's War: Forging New Links in the Anglo-Iroquois Covenant Chain 1758-1766, 44:4 Ethnohistory 617-654 (1997). Third, the tribes were recognized as controlling territory, having established borders, living under their own law and owning no allegiance to the Crown except when this was specifically negotiated.

For instance, during Pontiac's Rebellion a treaty was signed by the Ottawa, Chippewa, Shawnee and Wyandot in which Britain asserted sovereignty over the Indians. These avowals of British suzerainty, according to one contemporary, must "Have arisen from ignorance of the Interpreter or from some other mistake; for I am well convinced that they can never mean or intend, anything like it, and that they cannot be brought under our Laws, for some Centuries, neither have they any word which can convey the most distant object of subjection, and should it be fully explained to them, and the nature of subordination punishment etc., defined, it might produce infinite harm." The Treaty was disavowed by British General Thomas Gage for a variety of reasons. White & Cronon, supra note 131, at 294. The tribes took a similar position that they were independent and sovereign and that the Europeans had no rights except those that had been granted. During the summer of 1765 when George Croghan, British deputy superintendent of Indian Affairs met with the tribes concerning the right of passage through the Wabash country, the idea that France could transfer the tribes' territory to the British was denied. "[W]e have been informed that the English, wherever they settle, make the Country their own, and you tell us, that when you conquered the French, they gave you this Country. That no difference may happen hereafter, we tell you now the French never conquered, neither did they purchase a foot of our Country, nor have [they a right] to give it to you, we gave them liberty to settle for which they always rewarded us and treated us with great Civility." Quoted in Dorothy V. Jones, License for Empire Colonialism by Treaty in Early America 73 (1982). Fourth, the tribes were able to fight both offensive and defensive war, as evidenced by treaties of alliance and peace which were recognized numerous times by the French and British in North America over the centuries as an indispensable component of sovereignty. See Emer De Vattel, Le Droit des Gens, ou Principes de la Loi Naturelle, appliques a la Conduite et aux Affaires des Nations et des Souverains (reprinted in James Brown Scott ed., The Classics of International Law 235-236 (1964)).

(230) International law theorists posited that the sovereignty of a state consisted of two parts internal sovereignty and external sovereignty. Internal sovereignty is the "right of control" which is inherent in the people of any state, or vested in its ruler, by the constitution or by municipal law. See Henry Wheaton, Elements of International Law: Part I, Chapter II, [section] 5,29-30(1855).

(231) Peter W. Hogg, Constitutional Law of Canada Vol. 1 28-1 (5th ed. 2014) (looseleaf). I owe this idea to Michael Coyle, Loyalty and Distinctiveness: A New Approach to the Crown's Fiduciary Duty Toward Aboriginal Peoples, (2003) 40 Alberta L. Rev. 841, 844. See also Reference re Secession of Quebec, [1998] 2 S.C.R. 217, 248 (Can.).

(232) Brian Slattery, Making Sense of Aboriginal and Treaty Rights, 79 Can. Bar Rev. 196, 198 (2000). The idea that the law relating to aboriginal rights is a form of inter-societal law was most recently endorsed in R. v. Marshall (Marshall III); R. v. Bernard, 2005 SCC 43, paras. 45-60 (Can.). See also R. v. Van der Peet, [1996] 2 S.C.R. 507, 547 (Can.).

(233) See R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 31 (Can.) ("The substantive rights which fall within the provision must be defined in light of this purpose; the aboriginal rights recognized and affirmed by s. 35(1) must be directed towards the reconciliation of the preexistence of aboriginal societies with the sovereignty of the Crown.").

(234) I owe many of the idea in this section to Hogg, supra note 231. Section 35 is in part of the Canadian Charter of Rights and Freedoms.

(235) R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295, para. 116 (Can.).

(236) Hogg, supra note 231.

(237) Nowegijick v. The Queen, [1983] 1 S.C.R. 29, 36 (Can.).

(238) R. v. Sparrow, [1990] 1 S.C.R. 1075, 1106 (Can.).

(239) R. v. Gladstone, [1996] 2 S.C.R. 723, paras. 61-75 (Can.).

(240) R. v. Pamajewon, [1996] 2 S.C.R. 821, para. 27 (Can.) ("We wish to emphasize the importance of context and a case-by-case approach to s. 35(1). Given the generality of the text of the constitutional provision, and especially in light of the complexities of aboriginal history, society and rights, the contours of a justificatory standard must be defined in the specific factual context of each case.") (emphasis in original); see also R. v. Sundown, [1999] 1 S.C.R. 393, 407-8 (Can.).

(241) R. v Marshall (Marshall I), [1999] 3 S.C.R. 456, para. 4 (Can.).

(242) As Binnie, J. noted in Marshall I: "The honour of the Crown was, in fact, specifically invoked by courts in the early 18th century to ensure that a Crown grant was effective to accomplish its intended purpose...." Id. para. 53.

(243) Leonard I. Rotman, Parallel Paths: Fiduciary Doctrine and the Crown-Native Relationship in Canada (University of Toronto Press 1996).

(244) St. Catherine's Milling & Lumber Co. v. The Queen (1887), 13 S.C.R. 577, 649 (Can.).

(245) St. Ann's Island Shooting & Fishing Club, Ltd. v. The King, (1950) 2 D.L.R. 225, 232 (Rand, J.) (Can.) (emphasis added). (Section 51 of Indian requires that Governor-in-Council provide direction to Superintendent of Indian Affairs to lease surrendered Indian lands and the absence of authorizing order for lease for surrendered Indian land with private club renders lease void).

(246) Guerin v. Canada, [1984] 2 S.C.R. 335 (Can.) (Nature of Indian title and the federal statutory arrangement for disposing Indian land placed upon the Crown a fiduciary duty to deal with the land for the benefit of the aboriginal tribe).

(247) R. v. Sparrow, [1990] 1 S.C.R. 1075, 1108 (Can.).

(248) Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, para. 19. (Can.); Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245, para. 79 (Can.).

(249) Sparrow, [1991] 1 S.C.R. at 1108.

(250) Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245,287-88 (Can.).

(251) Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, para. 19. (Can.).

(252) R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 25 (Can.).

(253) R. v Marshall (Marshall I), [1999] 3 S.C.R. 456, para. 14 (Can.) (emphasis included).

(254) R. v. Marshall (Marshall IT), [1999] 3 S.C.R. 533, para. 54 (Can.).

(255) Nowegijick v. The Queen, [1983] 1 S.C.R. 29, 36 (Can.); Simon v. The Queen, [1985] 2 S.C.R. 387, 410 (Can.).

(256) Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550 (Can.), Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (Can.). The obligation reflects the protective relationship, assumed by the Crown under the Proclamation and in various treaties, applies even in those instances where a claimed right itself has yet to be recognized.

(257) Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) [2006] 1 C.N.L.R. 78 (Can.).

(258) Id.; R. v. Badger, [1996] 1 S.C.R. 771 (Can.).

(259) R. v. Powley, [2003] 2 S.C.R. 207, 221 (Can.).

(260) [section] 2(1) states "Indian" means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian". Indian Act, R.S.C. 1985 Chap. 1-5.

(261) No federal legislation defines the Metis. Alberta is the only province to have defined the term in law. The Metis Settlements Act. R.S.A.2000, c. M-14, s.1(j) (Can.) defines a Metis as "a person of aboriginal ancestry who identifies with Metis history and culture" in the context of creating a test for legal eligibility for membership in one of Alberta's eight Metis settlements. In Powley, [2003] 2 S.C.R. 207, the Supreme Court of Canada outlined three broad factors to identify Metis who have rights as aboriginal peoples: (a) self-identification as a Metis individual; (b) ancestral connection to an historic Metis community; and (c) acceptance by a Metis community. All three factors must be present for an individual to qualify under the legal definition of Metis. In addition, the court stated that: "[t]he term Metis in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, ways of life, and recognizable group identity separate from their Indian or Inuit and European forebears." Id. para. 9.

(262) "The Indian seeking to rely on a treaty to establish that he or she is not subject to certain provincial legislation can only rely on a treaty to which he is privy, that is to say a treaty which his ancestors were signatories to or to which he himself was a party." R. v. Syrette, [1989] O.J. No. 3157 (Can.), quoted in R. v. Shipman, [2006] 2 C.N.L.R. 284, 293 (Can.).

(263) Simon v. The Queen, [1985] 2 S.C.R. 387, 396-97 (Can.).

(264) Id. at 407-8.

(265) R. v. Chevrier, [1989] 1 C.N.L.R. 129, 130 (Can.).

(266) Id.

(267) R. v. Acker, [2004] N.B.J. 525 (N.B. Prov. Ct.) (Can.); see also R. v. Harquail, 144 N.B.R. (2d) 146 (N.B. Prov. Ct) (Can.).

(268) See Powley, [2003] 2 S.C.R. 207.

(269) Id. at 224-5.

(270) R. v. Lavigne, [2005] 3 C.N.L.R. 176 (N.B. Prov. Ct); see also R. v. Ferguson, [1993] 2 C.N.L.R. 148 (Alta Prov Ct) (Can.).

(271) Re Eskimos, [1939] S.C.R. 104 (Can.).

(272) John Giokas & Robert K. Groves, Collective and Individual Recognition in Canada, in Who Are Canada's Aboriginal Peoples? Recognition, Definition, and Jurisdiction 41, 45 (Paul Chartrand, ed. 2003).

(273) "However abundant the right of Indians to hunt and to fish, there can be no doubt that such right is subject to regulation and curtailment by the appropriate legislative authority. Section 88 of the Indian Act appears to be plain in purpose and effect. In the absence of treaty protection or statutory protection Indians are brought within provincial regulatory legislation." R. v. Horseman, [1990] 1 S.C.R. 901, 933 (Can.); Simon v. The Queen, [1985] 2 S.C.R. 387, 410-14 (Can.).

(274) Cardinal v. Alberta (Att'y Gen.), [1974] S.C.R. 695 (Can.).

(275) R. v. Nikal, [1996] 1 S.C.R. 1013 (Can.).

(276) "Where title to lands formerly occupied by an aboriginal people has not been surrendered, a claim for aboriginal title to the land may be made under the common law" R. v. Marshall (Marshall III); R. v. Bernard, 2005 SCC 43, para. 38 (Can.).

(277) Guerin, [1984] 2 S.C.R. at 382.

(278) See Delgamuukw v. British Columbia. [1997] 3 S.C.R. 1010 (Can.).

(279) In Badger, the Supreme Court of Canada extended the area that can be used by aboriginal to hunt and fish for food to unoccupied private lands. Cory J. noted at para. 54 that "[a]n interpretation of the Treaty [Treaty 8 subsequently incorporated in the Natural Resources Transfer Act] properly founded upon the Indians' understanding of its terms leads to the conclusion that the geographical limitation on the existing hunting right should be based upon a concept of visible, incompatible land use." After reviewing the case law the Court summarized:

   Where lands are privately owned, it must be determined on a
   case-by-case basis whether they are "other lands" to which Indians
   had a "right of access" under the Treaty. If the lands are
   occupied, that is, put to visible use, which is incompatible with
   hunting, Indians will not have a right of access. Conversely, if
   privately owned land is unoccupied and not put to visible use,
   Indians, pursuant to Treaty No. 8, will have a right of access in
   order to hunt for food. The facts presented in each of these
   appeals must now be considered.

R. v. Badger, [1996] 1 S.C.R. 771, para 66 (Can.).

(280) See Moosehunter v. The Queen, [1981] 1 S.C.R. 282, 285 (Can.):

   The Agreement had the effect of merging and consolidating the
   treaty rights of the Indians in the area and restricting the power
   of the provinces to regulate the Indians' right to hunt for food.
   The right of Indians to hunt for sport or commercially could be
   regulated by provincial game laws but the right to hunt for food
   could not.

See also R. v. Horseman, [1990] 1 S.C.R. 901 (Can.). Metis are not considered "Indians" under the Natural Resource Transfer Acts and may not exercise any of the usufructuary rights reserved to "Indians" in those acts. See R. v. Blais, [2003] 2 S.C.R. 236 (Can.).

(281) See Horseman, [1990] 1 S.C.R. at 913-14.

(282) See id. at 933:

   Further, the means employed by them in hunting for their food was
   placed beyond the reach of provincial governments. For example,
   they may hunt deer with nightlights and with dogs, methods which
   are or may be prohibited for others. Nor are the Indians subject to
   seasonal limitations as are all other hunters. That is to say, they
   can hunt ducks and geese in the spring as well as the fall, just as
   they may hunt deer at any time of the year. Indians are not limited
   with regard to the type of game they may kill. That is to say,
   while others may be restricted as to the species or sex of the game
   they may kill, the Indians may kill for food both does and bucks;
   cock pheasants and hen pheasants; drakes and hen ducks. It can be
   seen that the quid pro quo was substantial. Both the area of
   hunting and the way in which the hunting could be conducted was
   extended and removed from the jurisdiction of provincial

(283) Id. at 920-21.

(284) R. v. Badger, [1996] 1 S.C.R. 771 (Can.).

(285) R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 18 (Can.).

(286) R. v. Pamajewon, [1996] 2 S.C.R. 821 (Can.). This approach precludes an aboriginal right to self-government because "without specificity, any collective right could be argued on the basis of a right to self-government." Samson Indian Nation and Band v. Canada, [2006] 1 C.N.L.R. 100, 277 (Can.).

(287) See Van der Peet, [1996] 2 S.C.R. 507, para. 20.

(288) R. v. Cote. [1996] 3 S.C.R. 139, para. 25 (Can.).

(289) See Van der Peet, [1996] 2 S.C.R. 507, para. 119 (L'Heureux-Dube J., dissenting).

(290) Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 112 (Can.). The Delgamuukw Court noted that aboriginal title was a sui generis interest because it was inalienable, it pre-dates British sovereignty and it not dependent upon British sovereignty for its existence whereas all other property estates depend upon the British legal system; it is held communally and land use decision are made communally rather than by individual members. Id. paras. 112-15.

(291) McNeil, supra note 19, at 242.

(292) Brian Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title, Issue 2 of Studies in aboriginal rights 31-38 (University of Saskatchewan Native Law Centre 1983).

(293) McNeil, supra note 19, at 216-35.

(294) Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 117 (Can.).

(295) St. Mary's Indian Band Band v. Cranbrook (City), [1997] 2 S.C.R. 657 (Can.); Osoyoos Indian Band v. Oliver, [2001] 3 S.C.R. 746 (Can.).

(296) R. v. Marshall (Marshall III); R. v. Bernard, 2005 SCC 43, para. 54 (Can.).

(297) Id. para. 50.

(298) Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 84 (Can.).

(299) Marshall III, 2005 SCC 43, para. 49.

(300) Delgamuukw, [1997] 3 S.C.R. 1010, paras. 143-54.

(301) Marshall III, 2005 SCC 43, para. 70.

(302) Delgamuukw, [1997] 3 S.C.R. 1010, para. 119.

(303) Id. para. 110.

(304) "Had its Indian inhabitants been the owners in fee simple of the territory which they surrendered by the treaty of 1873, Ontario (Att'y Gen.) v. Mercer, 8 App. Cas. 767 (Can.), might have been an authority for holding that the Province of Ontario could derive no benefit from the cession, in respect that the land was not vested in the Crown at the time of the union. But that was not the character of the Indian interest. The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden. The ceded territory was at the time of the union, land vested in the Crown, subject to "an interest other than that of the Province in the same," within the meaning of sect. 109; and must now belong to Ontario in terms of that clause, unless its rights have been taken away by some provision of the Act of 1867 other than those already noticed." St. Catherine's Milling & Lumber v. R., 58 Law Journal Reports (N.S.), 54, 58 (J.C.P.C. 1889) (appeal taken from Can.).

(305) St. Catherine's Milling & Lumber Co. v. The Queen (1887), 13 S.C.R. 577, 612 (Can.) (Strong, J. dissenting) (citing Kent's Commentaries and Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835). The quote from Mitchel relied upon by Kent reads "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." Mitchel, 34 U.S. (9 Pet.) at 746.

Can. (Att'y Gen.) v. Ontario (Att'y Gen.), [1897] A.C. 199 (Can.) [hereinafter Att'y Gen.]; Ont. Mining Co. v. Seybold, [1903] A.C. 73 (Can).

(307) Que. (Att'y Gen.) v. Can. (Att'y Gen.), [1921] 1 A.C. 401, 408 (Can.) Lord Duff noted in his speech, Que., [1921] A.C. at 410-11 (emphasis added):

   The object of the Act of 1850, as declared in the recitals already
   quoted, is to make better provision for preventing encroachments
   upon the lands appropriated to the use of Indian tribes and for the
   defence of their rights and privileges, language which does not
   point to an intention of enlarging or in any way altering the
   quality of the interest conferred upon the Indians by the
   instrument of appropriation or other source of title; and the view
   that the Act was passed for the purpose of affording legal
   protection for the Indians in the enjoyment of property occupied by
   them or appropriated to their use, and of securing a legal status
   for benefits to be enjoyed by them, receives some support from the
   circumstance that the operation of the Act appears to extend to
   lands occupied by Indian tribes in that part of Quebec which, not
   being within the boundaries of the Province as laid down in the
   Proclamation of 1763, was, subject to the pronouncements of that
   Proclamation in relation to the rights of the Indians, a region in
   which the Indian title was still in 1850, to quote the words of
   Lord Watson, "a personal and usufructuary right dependent upon the
   good-will of the Sovereign."

(308) R. v. Wesley, [1932] 4 D.L.R. 774, para. 48 (Alta. S.C.) (Can.).

(309) Johnson v. M'Intosh, 21 U.S. 543, 588 (1823).

(310) As such, where the issue of extinguishment of aboriginal title was contested, as in the eastern Northwest Territories, the content of the right was not analogized to fee simple. In R. v. Kogogolak, (1959) 28 W.W.R. 376 (Can.), Sissons, J. implied that aboriginal title includes only an unfettered right to hunt and a potential to prevent non-Inuit hunting:

   I think the Royal Proclamation of 1763 is still in full force and
   effect as to the lands of the Eskimos. The Queen has sovereignty
   and the Queen's writ runs in these Arctic "lands and territories."
   This is the Queen's court and it needs must be observant of the
   "Royal will and pleasure" expressed 200 years ago and of the rights
   royally proclaimed. The lands of the Eskimos are reserved to them
   as their hunting grounds. It is the royal will that the Eskimos
   "should not be molested or disturbed" in the possession "of these
   lands. Others tread softly, for this is dedicated ground. This may
   be obiter dictum, but I question whether other persons have, or
   should have, the right to hunt or fish on the lands reserved to the
   Eskimos as their hunting grounds, except by special leave or
   license of the government of Canada. There has been no treaty with
   the Eskimos and the Eskimo title does not appear to have been
   surrendered or extinguished by treaty or by legislation of the
   Parliament of Canada. The Eskimos have the right of hunting,
   trapping, and fishing game and fish of all kinds, and at all times,
   on all unoccupied Crown lands in the Arctic.

Id. at 383-84.

(311) R. v. Adams, [1996] 3 S.C.R. 101 (Can.).

(312) Id. para. 28.

(313) Id. para. 26.

(314) Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (Can.).

(315) Id. para. 117.

(316) Id para. 125.

(317) Id. para. 126.

(318) Id. para. 127.

(319) Id. para. 128.

(320) Osoyoos, [2001] 3 S.C.R. 746, para. 46.

(321) "The relationship between an aboriginal community and the lands over which it has aboriginal title has an important non-economic component. The land has an inherent and unique value in itself, which is enjoyed by the community with aboriginal title to it. The community cannot put the land to uses which would destroy that value." Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 129 (Can.).

(322) R. v. Gladstone, [1996] 2 S.C.R. 723, para. 65 (Can.).

(323) R. v. Van der Peet, [1996] 2 S.C.R. 507 (Can.).

(324) Id. para. 30. Lamer, C.J. stated:

   The Canadian, American and Australian jurisprudence thus supports
   the basic proposition put forward at the beginning of this section:
   the aboriginal rights recognized and affirmed by s. 35(1) are best
   understood as, first, the means by which the Constitution
   recognizes the fact that prior to the arrival of Europeans in North
   America the land was already occupied by distinctive aboriginal
   societies, and as, second, the means by which that prior occupation
   is reconciled with the assertion of Crown sovereignty over Canadian
   territory. The content of aboriginal rights must be directed at
   fulfilling both of these purposes....

Id. para. 43.

(325) Id.

(326) Id.

(327) Id.

(328) "[I]n order to be an aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right." R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 46 (Can.).

(329) I owe this typology to Robertson, J.A. of the New Brunswick Court of Appeal who discussed it in R. v. Sappier, [2004] N.B.J. No. 295 (N.B.C.A.) (Can.).

(330) Mitchell v. M.N.R., 2001 SCC 33, para. 14 (Can.).

(331) Id.

(332) Van derPeet, [1996] 2 S.C.R. 507, paras. 53-63.

(333) Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 138 (Can.).

(334) R. v. Cote, [1996] 3 S.C.R. 139,167 (Can.).

(335) Mitchell, 2001 SCC 33, para. 56.

(336) R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 73 (Can.).

(337) Mitchell v. M.N.R., 2001 SCC 33, para. 38 (Can.).

(338) Van der Peet, [1996] 2 S.C.R. 507, para. 56 (emphasis in original).

(339) Id. para 55 (emphasis in original):

   To satisfy the integral to a distinctive culture test the
   aboriginal claimant must do more than demonstrate that a practice,
   custom or tradition was an aspect of, or took place in, the
   aboriginal society of which he or she is a part. The claimant must
   demonstrate that the practice, custom or tradition was a central
   and significant part of the society's distinctive culture. He or
   she must demonstrate, in other words, that the practice, custom or
   tradition was one of the things which made the culture of the
   society distinctive--that it was one of the things that truly made
   the society what it was.

(340) Mitchell, 2001 SCC 33, para. 12.

(341) Id.

(342) Id. para. 32.

(343) I owe this point to Russel Barsh & James Henderson, The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand, 42 McGill L.J. 994, 998-1002 (1997).

(344) R. v.' Gladstone, [1996] 2 S.C.R. 723, para. 75 (Can.).

(345) Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, para. 20 (Can.).

(346) R. v. Sioui, [1990] 1 S.C.R. 1025, 1043 (Can.).

(347) In R. v Marshall (Marshall 7), [1999] 3 S.C.R. 456, para. 43 (Can.), the Court stated:

   The law has long recognized that parties make assumptions when they
   enter into agreements about certain things that give their
   arrangements efficacy. Courts will imply a contractual term on the
   basis of presumed intentions of the parties where it is necessary
   to assure the efficacy of the contract, e.g., where it meets the
   "officious bystander test"

(348) Sioui, [1990] 1 S.C.R. at 1043.

(349) Marshall I, [1999] 3 S.C.R. 456, para. 9-17. Prior to Marshall I, courts would first look at the text of the treaty to determine if any ambiguity existed. If the treaty was ambiguous then the court would consider the historical context. The Marshall I Court ruled that extrinsic evidence, including oral terms that may have been stated in treaty negotiations, should be used to determine the treaty terms even where no textual ambiguity is found.

(350) R. v. Badger, [1996] 1 S.C.R. 771, para. 52 (Can.).

(351) Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 S.C.C. 69, para. 28 (Can.).

(352) R. v Marshall (Marshall I), [1999] 3 S.C.R. 456, paras. 107-10 (Can.).

(353) Badger, [1996] 1 S.C.R. 771, para. 52.

(354) R. v. Horseman, [1990] 1 S.C.R. 901, 907 (Can.); Miller, supra note 186, at 165 (when considering the nature of the numbered treaties negotiated between 1871 and 1877 in western Canada, James Miller notes "[t]he Indians' understanding [of the treaty negotiations] was different. Though they agreed with Sweet Grass that the territory was theirs and that no one could sell it out from under them, they did not hold to a concept of absolute property right in a European legal sense. The land and its resources were the creation of the Great Spirit, and the Indian was but one inhabitant of the world with obligations to use its resources prudently and pass them on to succeeding generations undiminished. They could not negotiate surrender of title because they did not possess it. What the Indians sought in the negotiations of the 1870s was the establishment of a relationship with the Dominion of Canada that would offer them assurances for the future, while agreeing to permit entry and some settlement of the region. To them the treaties were intended to be pacts of friendship, peace, and mutual support; they did not constitute the abandonment of their rights and interests.").

(355) Marshall I, [1999] 3 S.C.R. 456, para. 107.

(356) R. v. Badger, [1996] 1 S.C.R. 771, para. 41 (Can.).

(357) Nowegijick v. The Queen, [1983] 1 S.C.R. 29, 36 (Can.).

(358) R. v Marshall (Marshall I), [1999] 3 S.C.R. 456, para. 107 (Can.).

(359) R. v. Marshall (Marshall II), [1999] 3 S.C.R. 533, para. 19 (Can.).

(360) R. v. Marshall (Marshall III); R. v. Bernard, 2005 SCC 43, para. 34 (Can.).

(361) Id. para. 122 (emphasis in original).

(362) Id. para. 32.

(363) United States v. Winans, 198 U.S. 371, 381 (1905).

(364) Johnson v. M'Intosh, 21 U.S. 543, 574 (1823).

(365) R. v. Sparrow, [1990] 1 S.C.R. 1075 (Can.).

(366) R. v. Badger, [1996] 1 S.C.R. 771 (Can.). In that case Cory, J. also articulated an oft cited approach to treaty interpretation. At para. 41 he stated:

   At the outset, it may be helpful to once again set out some of the
   applicable principles of interpretation. First, it must be
   remembered that a treaty represents an exchange of solemn promises
   between the Crown and the various Indian nations. It is an
   agreement whose nature is sacred. Second, the honour of the Crown
   is always at stake in its dealing with Indian people.
   Interpretations of treaties and statutory provisions which have an
   impact upon treaty or aboriginal rights must be approached in a
   manner which maintains the integrity of the Crown. It is always
   assumed that the Crown intends to fulfil its promises. No
   appearance of "sharp dealing" will be sanctioned. Third, any
   ambiguities or doubtful expressions in the wording of the treaty or
   document must be resolved in favour of the Indians. A corollary to
   this principle is that any limitations which restrict the rights of
   Indians under treaties must be narrowly construed. Fourth, the onus
   of proving that a treaty or aboriginal right has been extinguished
   lies upon the Crown. There must be "strict proof of the fact of
   extinguishment" and evidence of a clear and plain intention on the
   part of the government to extinguish treaty rights.

(367) Sparrow, [1990] 1 S.C.R. 1075.

(368) Id. at 1097.

(369) Id. at 1093.

(370) Id. at 1099.

(371) Id.

(372) R. v Marshall (Marshall I), [1999] 3 S.C.R. 456, para. 77-81 (Can.).

(373) Id. para. 80, citing R. v. Adams, [1996] 3 S.C.R. 101 (Can.).

(374) Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (Can.); R. v. Cote, [1996] 3 S.C.R. 139 (Can.).

(375) Marshall I, [1999] 3 S.C.R. 456, para. 71, where the Supreme Court of Canada stated:

   The recorded note of February 11, 1760 was that "there might be a
   Truckhouse established for the furnishing them [s/c] with
   necessaries" What is contemplated therefore is not a right to trade
   generally for economic gain, but rather a right to trade for
   necessaries. The treaty right is a regulated right and can be
   contained by regulation within its proper limits.... The concept of
   "necessaries" is today equivalent to the concept of what Lambert,
   C.J., in Van der Peet ..., described as a "moderate livelihood."
   Bare subsistence has thankfully receded over the last couple of
   centuries as an appropriate standard of life for aboriginals and
   non-aboriginals alike. A moderate livelihood includes such basics
   as "food, clothing and housing, supplemented by a few amenities",
   but not the accumulation of wealth. It addresses day-to-day needs.
   This was the common intention in 1760. It is fair that it be given
   this interpretation today.

(376) Id. para. 74.

(377) Christie, Justifying Principles, supra note 222, at 185.

(378) See Jack v. The Queen, [1980] 1 S.C.R. 294 at 311 (Can.):

   What protection, then, is afforded Indian fishing by art. 13 of the
   Terms of Union? At a minimum, one can say that 'a policy as
   liberal' requires no discrimination against the Indian fishery as
   opposed to the commercial or sports fishery. 1 also think that one
   could go further--the Colony gave priority to the Indian fishery as
   an appropriate pursuit for the coastal Indians, primarily for food
   purposes and, to a lesser extent, for barter purposes with the
   white residents. Thus, when it comes time to take into
   consideration the emergence of commercial and sport fisheries, one
   could suggest that "a policy as liberal" would require clear
   priority to Indian food fishing and some priority to limited
   commercial fishing over the competing demands of commercial and
   sport fishing. Finally, there can be no serious question that
   conservation measures for the preservation of the
   resource--effectively unknown to the regulatory authorities prior
   to 1871--should take precedence over any fishing, whether by
   Indians, sportsmen, or commercial fishermen. From Dr. Lane's
   testimony, as well as that of Joseph Elliott, an old member of the
   Cowichan band, it appears that the Indians themselves practiced
   some form of self-imposed discipline for conservation purposes.

(379) See R. v. Sikyea, (1964) 43 D.L.R. (2d) 150, para.4 (N.W.T. C.A.):

   The right of Indians to hunt and fish for food on unoccupied crown
   lands has always been recognized in Canada--in the early days as an
   incident of their "ownership" of the land, and later by the
   treaties by which the Indians gave up their ownership right in
   these lands

(380) R. v. Wesley, [1932] 4 D.L.R. 774, para. 33 (Alta. S.C.) (Can.); Prince and Myron v. The Queen, [1964] S.C.R. 81 (Can.).

(381) Jack, [1980] 1 S.C.R. at 311; R. v. Horseman, [1990] 1 S.C.R. 901 (Can.). The Natural Resource Transfer Acts provide that treaty aboriginals who to hunt for sport or commercially could be regulated by provincial game laws but those who hunt for food could not. See Moosehunter v. The Queen, [1981] 1 S.C.R. 282 (Can.).

(382) Horseman, [1990] 1 S.C.R. 901; R. v. Jones (1993), 14 O.R. (3d) 421 (Ont. Prov. Div.) (Can.) (members of Saugeen Ojibway First Nation have treaty and aboriginal right to fish for commercial purposes in order to derive subsistence use of resource and have priority over other user groups in the allocation of fish surplus).

(383) R. v. Gladstone, [1996] 2 S.C.R. 723, para. 57 (Can.).

(384) R. v. Sparrow, [1990] 1 S.C.R. 1075, 1113 (Can.).

(385) R. v. Sutherland, [1980] 2 S.C.R. 451 (Can.) (The fiduciary relationship of the Crown and aboriginal peoples means that that any doubt or ambiguity as to what falls within the scope and definition of [section] 35(1) and a treaty term must be resolved in favour of aboriginal peoples.); see also Simon v. The Queen, [1985] 2 S.C.R. 387 (Can.).

(386) R. v. Gladstone, [1996] 2 S.C.R. 723, para. 57 (Can.) In the exceptional circumstance where commercial exchange for money or other goods was a central, significant and defining and distinctive feature of an aboriginal culture the aboriginal right to exclusive use of the resource is restricted by the Doctrine of Priority which allows for an aboriginal preference but does not exclude commercial and sport uses by non-Indians. ("[T]he doctrine of priority requires that the government demonstrate that, in allocating the resource, it has taken account of the existence of aboriginal rights and allocated the resource in a manner respectful of the fact that those rights have priority over the exploitation of the fishery by other users. This right is at once both procedural and substantive; at the stage of justification the government must demonstrate both that the process by which it allocated the resource and the actual allocation of the resource which results from that process reflect the prior interest of aboriginal rights holders in the fishery.").

(387) R. v. Sparrow, [1990] 1 S.C.R. 1075, 1114 (Can.) (emphasis added).

(388) Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 123 (Can.).

(389) R. v. Cote, [1996] 3 S.C.R. 139, para. 38 (Can.) ("[T]here is no a priori reason why the defining practices, customs and traditions of such societies and communities should be limited to those practices, customs and traditions which represent incidents of a continuous and historical occupation of a specific tract of land.").

(390) As Lamer, C.J noted in R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 73 (Can.):

   The fact that Europeans in North America engaged in the same
   practices, customs or traditions as those under which an aboriginal
   right is claimed will only be relevant to the aboriginal claim if
   the practice, custom or tradition in question can only be said to
   exist because of the influence of European culture. If the
   practice, custom or tradition was an integral part of the
   aboriginal community's culture prior to contact with Europeans, the
   fact that that practice, custom or tradition continued after the
   arrival of Europeans, and adapted in response to their arrival, is
   not relevant to determination of the claim; European arrival and
   influence cannot be used to deprive an aboriginal group of an
   otherwise valid claim to an aboriginal right. On the other hand,
   where the practice, custom or tradition arose solely as a response
   to European influences then that practice, custom or tradition will
   not meet the standard for recognition of an aboriginal right.

(391) See Christie, A Colonial Reading, supra note 162.

(392) Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11 (U.K.) (Can.) ([section] 35(1) providing that "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.").

(393) Aboriginal title is extinguished where there has been the issuance of a Crown patent. It is settled that aboriginal rights in much of the territory have not been extinguished on Crown land in the Maritimes, British Columbia and the Northwest Territories and Nunavut and parts of Ontario and Quebec. Where the rights have not been extinguished, hunting, fishing and gathering rights are limited to the particular practices of the aboriginal group claiming the right and the doctrine of priority.

(394) R. v. Sparrow, [1990] 1 S.C.R. 1075, 1091 (Can.) (quoting R. v. Eninew, [1983] 7 C.C.C. (3d) 443, 446 (Sask. C.A.) (Can.)).

(395) Prior to Confederation the Crown in right of the Province of Canada "had full power, by legislation, administrative acts and treaties, to unilaterally revoke Indian rights" based on the theory that no colonial act relating to aboriginals was disallowed or reserved for disapproval. Ontario (Att'y Gen.) v. Bear Island Found, et al. Potts et al. v. Ontario (Att'y Gen.), [1984] 49 O.R. (2d) 353, 468 (Ont. H.C.J) (Can.).

(396) Calder v. British Columbia (Att'y Gen.), [1973] S.C.R. 313, 333 (Can.) (Judson, J., dissenting).

(397) "The coexistence of an aboriginal title with the estate of the ordinary private land holder is readily recognized as an absurdity. The communal right of aborigines to occupy it cannot be reconciled with the right of a private owner to peaceful enjoyment of his land." Baker Lake v. Ministry of Indian Affairs and Northern Development, [1980] 1 F.C. 518, 565 (F.C.T.D.) (Can.).

(398) St. Catherine's Milling & Lumber Co. v. The Queen (1887), 13 S.C.R. 577, 599-600 (Can.).

(399) Mitchell v. M.N.R., 2001 SCC 33, para. 154 (Can.) (Binnie, J. concurring) (it is unlikely that any aboriginal right would survive where it is incompatible with Canadian sovereignty).

(400) See R. v. Sparrow, [1990] 1 S.C.R. 1075, 1098-99 (Can.) (quoting Mahoney, J. in Baker Lake, [1980] 1 F.C. at 568). The Sparrow Court noted that the regulation of an aboriginal right does not necessarily extinguish the right and that the burden for proving extinguishment rested on the Crown.

(401) R. v. Sikyea, (1964) 43 D.L.R. (2d) 150, para. 12 (N.W.T. C.A.) (Can.).

(402) Sparrow, [1990] 1 S.C.R. at 1099 (it is unlikely that extinguishment can only occur with a statement of specific intent enacted in the statute).

(403) John C. Weaver, The Great Land Rush and the Making of the Modern World, 1650-1900 151 (2003).

(404) See, e.g., Contested States: Law, Hegemony and Resistance 5 (Susan F. Hirsch & Mindie Lazarus-Black eds., 1994).

(405) Anthony G. Gulig & Sidney L. Harring, "An Indian Cannot Get a Morsel of Pork ..."--A Retrospective on Crow Dog, Lone Wolf, Blackbird, Tribal Sovereignty, Indian Land, and Writing Indian Legal History, 38:1 TULSA L. Rev. 87, 102 (2002).
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Title Annotation:III. The Canadian Doctrine of Off-Reserve Hunting, Fishing and Gathering Rights E. Determining the Content and the Scope of Hunting, Fishing and Gathering Rights through IV. Conclusion: Politics, Law and History in American and Canadian Indigenous Usufructuary Rights, with footnotes, p. 142-169
Author:Charlton, Guy
Publication:Canada-United States Law Journal
Date:Jan 1, 2015
Previous Article:The law of Native American hunting, fishing and gathering rights outside of reservation boundaries in the United States and Canada.
Next Article:The Boundary Waters Treaty 1909 - a peace treaty?

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