10.1 Treaty-Based Hunting, Fishing, and Gathering Rights

Treaty-based hunting, fishing, and gathering rights are crucial for Native American tribes. These rights, rooted in historical agreements with the U.S. government, allow tribes to access and use resources on ancestral lands, even outside reservations.

Understanding these rights involves complex legal principles like usufructuary rights, the reserved rights doctrine, and aboriginal title. Treaties are interpreted in favor of tribes, with off-reservation rights and state jurisdiction being key issues in preserving tribal sovereignty and resource access.

Treaty Rights and Interpretation

Usufructuary Rights and the Reserved Rights Doctrine

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• Usufructuary rights grant tribes the right to use and enjoy resources on their ancestral lands, including hunting, fishing, and gathering, without owning the land outright
• The reserved rights doctrine holds that treaties are grants of rights from tribes to the federal government, and any rights not explicitly granted are reserved by the tribes
• Aboriginal title refers to the inherent rights of indigenous peoples to their ancestral lands based on traditional use and occupancy, recognized by the U.S. legal system

Treaty Interpretation and Canons of Construction

• Treaties between tribes and the federal government are interpreted as the tribes would have understood them at the time they were signed, considering language barriers and cultural differences
• Canons of construction are legal principles used to interpret treaties in favor of tribes, resolving ambiguities in their favor (Winters v. United States)
• Treaties are considered the supreme law of the land under the U.S. Constitution, and their provisions supersede conflicting state laws or regulations

Off-Reservation Rights and Jurisdiction

Off-Reservation Rights and Usual and Accustomed Places

• Many treaties protect tribes' rights to hunt, fish, and gather on lands outside their reservations, particularly in "usual and accustomed" places where they traditionally exercised these rights
• Usual and accustomed places are locations where tribes historically hunted, fished, or gathered, and these areas are protected by treaty rights even if they are not within reservation boundaries (U.S. v. Winans)
• Tribes may have exclusive or shared access to resources in these areas, depending on the specific language of the treaty and historical context

State Jurisdiction and Tribal Sovereignty

• States generally lack jurisdiction over tribal members exercising treaty rights on reservations or in usual and accustomed places, as these rights are protected by federal law
• Tribal sovereignty means that tribes have the inherent right to govern themselves and manage their internal affairs, including regulating hunting, fishing, and gathering activities by their members
• State regulations may apply to tribal members exercising treaty rights off-reservation only if they are necessary for conservation, do not discriminate against tribes, and do not infringe on tribal self-governance (Puyallup Tribe v. Department of Game)

Conservation and Management

Regulation, Conservation, and Abrogation

• Tribes and the federal government may regulate and limit treaty rights for conservation purposes, ensuring sustainable use of resources for future generations
• The federal government has the power to abrogate (terminate) treaty rights, but it must do so explicitly and compensate tribes for the loss of these rights (Menominee Tribe v. United States)
• Abrogation of treaty rights requires a clear statement of congressional intent and cannot be done lightly, as it represents a significant infringement on tribal sovereignty and property rights

Co-Management, Subsistence Rights, and the Federal Trust Responsibility

• Co-management agreements between tribes and state or federal agencies allow for shared decision-making and cooperative management of natural resources, recognizing tribal expertise and traditional ecological knowledge
• Subsistence rights protect tribes' ability to hunt, fish, and gather for traditional, non-commercial purposes, such as cultural practices, religious ceremonies, and sustenance (Alaska National Interest Lands Conservation Act)
• The federal trust responsibility obligates the federal government to protect tribal resources, rights, and interests, including treaty rights, and to act in the best interests of tribes (Seminole Nation v. United States)