The Rights of Indians and their Tribes Fifth Edition Chapter 4 Indian Treaties

Pevar, S. L. (2024): The Rights of Indians and their Tribes, Fifth Edition; Oxford University Press, New York, NY.

‍

Page 80 – Is an Indian treaty a grant of rights to a tribe?

The main purpose of an Indian treaty was to take land from the tribe without warfare.  Although certain promises were given by the federal government in exchange, no effort was made in any of these treaties to list the many rights that these sovereign tribal governments retained.

An Indian treaty, therefore, should be viewed, the Supreme Court has explained, “Not [as] a grant of rights to the Indians, but a grant of rights from them.” 26 Typically, these treaties only listed the rights that tribes were relinquishing, not those they were retaining.  Thus, tribes have many rights in addition to those listed in treaties.  In fact, any right that a sovereign nation would normally possess that is not expressly extinguished by a treaty (or by a subsequent federal statute) is presumptively reserved by the tribe.27 This is a principle of federal Indian law known as the reserved rights doctrine.  For example, a tribe reserves the right to fish on its reservation even if that right is not recognized in its treaty; the treaty’s silence on the subject means that this inherent right has not been lost.28  

Even when a treaty recognizes a tribe’s right to engage in an activity that the tribe historically engaged in, such as hunting or fishing, the treaty is not viewed as the source of that right.  Rather, the treaty merely recognizes rights that the tribe has always possessed.29

26. United States v. Winans, 198 U.S. 371 (1905); Northwestern Band of Shoshone Nation
v. Wooten, 83 F.4th 1205, 1212 (9th Cir. 2023).

27. Menominee Tribe v. United States, 391 U.S. 404 (1968); United States v. Dion, 476 U.S.
734, 739 (1986); Swim v. Bergland, 696 F.2d 712 (9th Cir. 1983).

28. See Winans, 198 U.S. 371; United States v. Confederated Tribes of Colville Indian
Reservation, 606 F.3d 698, 713 (9th Cir. 2010).

29. Winans, 198 U.S. at 381-82; United States v. Washington, 135 F.3d 618 (9th Cir. 1998),
amended, 157 F.3d 630, 644 (9th Cir. 1998) (noting that a treaty right to take fish "must be read as a reservation of the Indians' pre-existing rights"); United States v. Adair, 723
F.2d 1394, 1412-15 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984).

‍

‍

Pages 84 – 86 – How are Indian treaties interpreted when a dispute arises as to their meaning?

Many disputes have arisen over items used in Indian treaties, often involving valuable interests in land, water, minerals, and hunting and fishing rights.63 The Supreme Court has developed four rules that govern the interpretation of Indian treaties, called the canons of treaty construction.  First, treaties must be interpreted as the Indians would have understood them at the time the treaties were signed.64 Second, treaties must be construed liberally in favor of the Indians.65 Third, ambiguities in treaties must be resolved in favor of the Indians.66 Finally, treaties should be interpreted as preserving tribal sovereignty and property rights unless a contrary intent is clearly evident.67 As the Supreme Court recently confirmed, abrogation of a treaty right “may not be lightly inferred and treaty rights are to be construed in favor, not against, tribal rights”68 When interpreting an Indian treaty, courts must consider “the historical context in which it was written and signed”69 and “give effect to the terms as the Indians themselves would have understood them.”70

The canons have been extremely important to Indian tribes, resulting in favorable court decisions in numerous cases.  In 2019, the Supreme Court held that a treaty guaranteeing the Crow Tribe a right to hunt “unoccupied” land includes land that today is part of a national forest73 Likewise, courts have held that (1) a treaty that ensures that tribes may fish “in common with citizens of a territory” conferred not just an equal opportunity to catch fish but reserved to the tribes a right to capture up to 50 percent of the available resource;74 (2) a treaty that created a reservation for a tribe to be held “as Indian lands were held” reserved to the tribe enough water to make the reservation productive, even though the treaty said nothing about water rights;75 (3) an agreement that guaranteed a tribe a right “to pasture their livestock” on certain public lands reserved to the tribe a priority right to graze there cattle on public lands over competing users;76 (4) a treaty that granted Indians the right to fish in a lake adjoining the reservation reserved to them the right to moor their boats on a shoreline now owned by a municipality, even though no language in the treaty expressly conferred that right77 and (5) a treaty that granted a tribe “the right, in common with citizens of the United States, to travel upon all public hiways.” Conferred a right to haul motor fuel on state roads without payment of state fuel taxes,78 and also conferred a right to haul tribal timber on state roads without payment of state licensing fees, even though the treaty did not expressly confer either of those tax immunities.79 Thus Indian treaties remain enormously important.  Still, as the supreme Court explained in 2023, in order for the canons to apply, the text of the treaty must support the interpretation that the tribe wants to give it.80

These same canons also apply to the interpretation of federal statutes regarding Indians, which often are the vehicles selected by Congress to fulfill treaty promises.81 As the Supreme Court has stated, “statutes are to be construed liberally in favor of the Indians, with ambitious provisions interpreted to their benefit.”82

63. See cases cited supra note 57 (land); Menominee Indian Tribe v. Thompson, 161 F.3d
449, 457 (7th Cir. 1998), cert. denied, 526 U.S. 1066 (1999) (hunting and fishing
rights); Winters v. United States, 207 US. 564 (1908) (water rights).

64. Herrera v. Wyoming, 139 S. Ct. 1686, 1699, 1701, 1702 (20I9); Jones v. Meehan, 175
U.S. I, 10 (1899); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970).

65. Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 197 (2012); Tulee v. Washington,
315 U.S. 681, 684-85 (1942); Washington v. Washington State Commercial Passenger
Fishing Vessel Association, 443 U.S. 658, 690 (1979); In re CSRBA Case No. 49576,
448 P.3d 322, 340-41 (Idaho 2019).

66. Herrera, 139 S. Ct. at 1699; Bryan v. Itasca County, Minnesota, 426 U.S. 373, 392
(1976); Metlakatla 'Indian Community v. Dunleavy, 58 F.4th 1034, 1043 (9th Cir.
2023). This canon does not apply, however, when no ambiguity exists. See Penobscot
Nation v. Frey, 3 F.4th 484, 503 (1st Cir. 2021) (en banc), cert. denied, 142 S. Ct. 1669
(2022).

67. See Herrera, 139 S. Ct. at 1696, 1698; COHEN'S HANDBOOK, supra note 11, at § 2.02 [ 1 ], 113-14. See generally Alex Tallchief Skibine, Textualism and the Indian Canons of Statutory Construction (2021 ), available at https:// dc.law.utah.edu/ cgi/viewcontent.
cgi ?article= 1292&context=scholarship.

68. McGirt v. Oklahoma, 140 S. Ct. 2452, 2470 (2020). See also Herrera, 139 S. Ct. at 1699,
1701, 1702; Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, !94 n.5,
196 (1999); United States v. Confederated Tribes of Colville Indian Reservation, 606
F.3d 698, 708 (9th Cir. 2010); Keweenaw Bay Indian Community v. Naftaly, 452 F.3d.
514, 523-24 (6th Cir.), cert. denied, 549 U.S. 1053 (2006).

69. Washington State l)ept. of Licensing v. Cougar Den, 139 S. Ct. 1000, 1012 (2019).

‍

70. Mille Lacs, 526 U.S. at 196. See also Metlakatla Indian Community, 58 F.4th at 1042.
These canons are not unique to Indian law but reflect accepted principles of international
law. See Seth Davis, Eric Biber, & Elena Kempf, Persisting Sovereignties, 170 U.
PENN. L. REv. 549, 560 (2022).

73. Herrera v. Wyoming, 139 S. Ct. 1686, 1701 (2019).
7 4. See Passenger Fishing Vessel Ass'n, 443 U.S. 658. Indian fishing rights are the subject of
Chapter X.

74. See Passenger Fishing Vessel Ass'n, 443 U.S. 658. Indian fishing rights are the subject of
Chapter X.

‍75. Winters v. United States, 207 U.S. 564 (1908). See also United States v. Mair, 723 F.2d
1394, 1412-15 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984).

76. Swim v. Bergland, 696 F.2d 712 (9th Cir. 1983).

77. Grand 'lraverse Band of Ottawa & Chippewa Indians v. Director, Michigan Department
of Natural Resources, 141 F.3d 635 (6th Cir.), cert. denied, 525 U.S. 1040 {1998).

78. Washington State Dept. of Licensing v. Cougar Den, 139 S. Ct. 1000, 1012 (2019).

79. Cree v. Flores, 157 F.3d 762 (9th Cir. 1998). See also United States v. Smiskin, 487 F.3d
1260, 1264 (9th Cir. 2007).

80. Arizona v. Navajo Nation, 143 S. Ct. 1804, 1813 (2023).

81. See Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985); Oneida County v. Oneida
_ 1ndian Nation, 470 U.S. 226, 247 (1985); San Carlos Apache Tribe v. Becerra, 53 F.4th
1236, 1244-45 (9th Cir. 2022); Ramah Navajo Chapter v. Lujan, 1 12 F.3d 1455, 1461-
62 (10th Cir. 1997).

82. Blackfeet Tribe, 471 U.S. at 766. See also Connecticut v. U.S. Department of the Interior,
228 F.3d 82, 92 (2d Cir. 2000), cert. denied, 532 U.S. 1007 (2001).

‍