Protecting habitat for off-reservation tribal hunting and fishing rights: tribal comanagement as a reserved right.

AuthorGoodman, Ed

    After being suppressed under discriminatory regimes of state and federal fish and game management for much of this century, Indian tribes and their members successfully began to assert their reserved rights(1) to hunt, fish, trap, and gather on lands and waters off their reservations in the 1960s and 1970s.(2) Many tribes, particularly in the Pacific Northwest and the Great Lakes regions, retained hunting, fishing, trapping, and gathering rights on lands and waters that were, by one mechanism or another, moved out of tribal ownership.(3) Exercise of reserved hunting and fishing rights remain a mainstay of many tribal economies, both for commercial and subsistence uses.(4) Exercise of these rights are also politically important because the rights are a significant component of a tribe's unique political identity.(5) Exercise of these rights are important, finally, as an essential cultural practice; for many tribes, it is through the exercise of such rights that tribal traditions are passed on from generation to generation, and the present and future are connected to a long history of place.(6)

    Critical to the exercise of such rights is the existence, health, and vitality of the resources on which such rights depend--fish to be harvested, game to be hunted, and plants to be gathered. As described below, many court decisions and legal commentators have recognized that the tribes' reservation of these usufructuary rights includes a corresponding reserved right to the maintenance and well-being of those resources, a right which includes protection of the habitat upon which such resources depend.(7) However, increased pressures from resource exploitation activities, such as logging, mining, and grazing on public lands have in many instances led to the degradation of habitat and the consequent diminishment of reserved rights resources.(8)

    Indian tribes, witnessing the continued loss of resources and the degradation of habitat, are asserting that their reserved rights--in light of the doctrines of tribal sovereignty--include the right to participate as comanagers in resource decision making on public lands and waters affecting their reserved rights.(9) Tribes seek to be incorporated into land and resource management decision making not merely as commentators, but as sovereign governments with power-sharing capacity. Some tribes have in fact begun to enter into agreements with federal agencies that provide for an increased tribal role in such resource decision making.(10) The tribal call for comanagement with the federal government--a call for recognition of their participation in a power-sharing arrangement over such decision making--is rooted in the prerogative of tribes, as sovereigns, to care for their people, their culture, and their economic well being.(11)

    Many tribes and intertribal organizations have developed sophisticated natural resources departments staffed with technical experts familiar with the resources at issue.(12) Moreover, tribes often possess a unique and extraordinarily valuable expertise--a localized, deeply historical understanding and information about species and habitat developed from centuries of observation of, interaction with, and reliance upon such resources.(13) A number of federal agencies in fact recognize the tribal right to protection of such resources.(14) These same agencies, however, often strenuously resist the tribes' aspiration toward a comanagement role on the grounds that sharing decision-making power with tribes conflicts with the management authority delegated to the agency.(15)

    This Article presents a detailed framework for the validation and implementation of tribal comanagement. The right to comanagement, this Article argues, is based on the understanding by the tribes that their off-reservation reserved rights included the right to participate in the management of such resources.(16) This understanding is based on and further bolstered by the doctrine of tribal inherent sovereign authority--a doctrine recognized by the federal judiciary, Congress, and the executive branch. Implementation of a comanagement framework will likely require consideration and action by all three branches of the federal government.(17) While it is up to and within the authority of the federal agencies in the executive branch to implement comanagement, it may well take Congressional and judicial action to move the agencies from their status quo position of resistance. The federal judiciary will also have a role to play, particularly in articulating the scope and relationship of the United States trust responsibility to tribes. Thus, this Article raises issues, arguments, and proposals addressed variously to decision makers in each of the three branches of the United States government.

    Part II of this Article examines the legal backdrop of off-reservation reserved rights and the basis of the tribal right to habitat protection for off-reservation resources. Part III describes both the legal foundation for and the tribal understanding of a reserved right to exercise tribal sovereign authority outside reservation boundaries. Part IV of the Article describes the United States's practice--through all three branches of government--of recognizing the exercise of tribal governmental authority off-reservation. It demonstrates that the reasoning and policies underlying this recognition extends to the recognition of a tribal comanagement role over off-reservation rights and resources as an aspect of tribal sovereignty reserved by the tribes through the various treaties. This section further describes how the interplay of the doctrines of tribal sovereignty and the trust responsibility support the assertion of a tribal participatory role in management decision making over off-reservation resources and habitat. Finally, Part V describes how comanagement might work, setting out some basic principles as well as analyzing some possible models.

    Comanagement embodies the concept and practice of two (or more) sovereigns working together to address and solve matters of critical concern to each. Comanagement is not a demand for a tribal veto power over federal projects, but rather a call for an end to federal unilateralism in decision making affecting tribal rights and resources. It is a call for a process that would incorporate, in a constructive manner, the policy and technical expertise of each sovereign in a mutual, participatory framework. This Article seeks to clarify the legal and policy foundation for that framework.


    The westward expansion of the United States through the nineteenth century faced a significant legal and strategic obstacle: the lands that the country wanted to acquire and govern were already occupied. While the United States acquired dominion and title to much of these lands through a variety of means, including military invasion and displacement and encroachment by settlers, it acquired the majority of the lands by entering into treaties or other agreements with the inhabitant tribes.(18) For nonIndians, this latter method involved agreements aimed at avoiding armed conflict and facilitating non-Indian settlement and development. From the tribal perspective, the goal was to reserve certain lands for exclusive use and occupation, along with other critical resource use rights.(19) In a number of instances, the rights reserved by the tribes involved the rights to hunt, fish, trap, and gather outside reservation boundaries.(20)

    At the time the tribes reserved these rights, fish and game were sufficiently abundant to allay concerns of competition or degradation. It was not long, however, before the massive influx of non-Indians, the expansion of non-Indian residential settlement, and the consequent development of non-Indian industries began to significantly diminish the resources.(21) Increased competition for the increasingly limited resources put further constraints on the exercise of the tribal rights reserved in perpetuity only a few generations earlier. As a result, it has become difficult for the tribes and their members to rely on the resources for their livelihoods and for the continuation of their cultural and spiritual traditions based on the harvest and use of those resources. The scarcity of those resources, particularly the environmental degradation that has lead to their decline, has produced significant conflicts between the tribes and the federal agencies that manage the lands and waters that tribes rely upon.(22)

    The tribal initiatives for comanagement are one of the fruits of this conflict and a product of the tribes' desire to ensure a meaningful supply of the resources upon which the exercise of their reserved rights depend. The legal foundation for comanagement, however, can be found in the case law that established the source and scope of the off-reservation reserved usufructuary rights.

    1. The Right to Hunt, Fish, Trap, and Gather Off-Reservation

      In 1905 the United States Supreme Court handed down United States v. Winans,(23) the case that has become the cornerstone for the recognition and protection of off-reservation reserved rights to hunt and fish.(24) Winans involved the interpretation of the Yakama Indian Nation's 1855 treaty with the United States, which reserved to the Tribe "the right of taking fish at all usual and accustomed places, in common with the citizens of the Territory, and of erecting temporary buildings for curing them."(25) Two non-Indians (the Winans brothers) operated a number of state-licensed fish wheels near one of the Yakama Nation's usual and accustomed fishing places. They began excluding Yakama tribal members from the falls and destroyed their fish curing buildings.(26) The United States brought suit on behalf of the Yakama Nation to secure their right to access and use their usual and accustomed fishing sites.

      The Supreme Court...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT