NOTES

¹ Cherokee Nation v Georgia, 30 U.S. (5 Pet.) 1 (1831) at 16.

² The Trade and Intercourse Acts passed between 1790 and 1834 were intended to separate Indians from non-Indians and regulate their interaction. Non-Indians could not purchase, settle on, or use for grazing Indian land. Depredations against Indians by non-Indians were made a federal crime for which federal compensation would devolve if the Indians did not resort to self-help.

³ Worcester v Georgia, 31 U.S. ( 6 Pet.) 515 (1832) at 557.

⁴ Id. at 561.

⁵ The Cherokee Tobacco, 78 U.S. (11 Wall) 616 (1871).

⁶ Lone Wolf v Hitchcock, 187 U.S. 553 (1903) at p 564-565.

⁷ The Court in Lone Wolf further stated: "The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but may demand in the interest of the country and the Indians themselves, that it should do so. When, therefore treaties were entered into between the United States and a tribe of Indians it was never doubted that the power to abrogate existed in Congress, and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians." Id. at 566.

⁸ U.S. Const., Art VI, cl. 2: The Supremacy Clause.

⁹ 470 U.S. 226 (1985).

¹⁰ The concept of federal trust responsibility to Indians evolved judicially. Chief Justice Marshall concluded that tribes were"...in a state of pupilage" and that their "relation to the United States resembles that of a ward to his guardian." Cherokee Nation v Georgia Supra Note 1 at 17. The United States assumed many obligations toward the Indians in its treaties, including the obligation to "secure them in the title and possession of their lands, in the exercise of self-government, and to defend them from domestic strife and foreign enemies: and powers adequate to fulfillment of those obligations are necessarily reserved." HR Rep No 474, 23rd Cong., 1st Sess. 17 (1834).

¹¹ A poignant description of improper treaty negotiation with the Nez Perces and the consequences of failure is found in Alvin M. Josephy, Jr. 500 Nations Alfred A. Knopf, Inc. 1994. p. 409-418.

¹² In 1855, during the negotiation of a new treaty between the Chippewa and the United States regarding the Indian claim land in Minnesota, Governor Gorman told Agent David Harriman to take a Mille Lacs chief with him. He instead took a St. Croix chief.... "A delegation from the Mille Lacs complained to Gorman, indicating that neither the St. Croix chief or the Gull Lake leader, Hole-in-the-Day, could adequately represent them...[in fact, indicating] `if Hole-in-the-Day went to Washington and sold their land without them, that they would kill him the moment he returned.'" Mille Lacs Band of Chippewa Indians v Minnesota 861 F. Supp. 784; 1994 U.S. Dist. LEXIS 11901, at 82-83.

¹³ Tulee v Washington, 315 U.S. 681 (1942). See also Choctaw Nation v Oklahoma, 397 U.S. 620, 631 (1970) reh'g denied 398 U.S. 945 (1970) stating interpretation is based on the Indians understanding of the treaty. See, e.g., State v Tinno, 497 P. 2d 1386, 1389 (Idaho 1972) where the right to hunt on "unoccupied lands of the United States" included the right to fish because "the particular Indian languages did not employ separate verbs or distinguish between hunting and fishing...".

¹⁴ Carpenter v Shaw, 280 U.S. 363 (1930). The standard rules of contract construction still apply e.g. that ambiguity is construed contra proferentum (against the profferer).

¹⁵ Menominee Tribe of Indians v United States, 391 U.S. 404 (1968).

¹⁶ "[A]ll statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to members of the tribe, and the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction." 25 U.S.C.A. §899 (1954) repealed 25 U.S.C.A. §903a(b) (1973).

¹⁷ United States v Winans, 198 U.S. 371 (1905). Interpreting the Stevens Treaties named for Governor Stevens, a principle negotiator.

¹⁸ Oregon Dept. of Fish & Wildlife v Klamath Indian Tribe, 473 U.S. 753 (1985).

¹⁹ Treaty with the Nisqually and Other Indians, art. III, 10 Stat. 1132, 1133 (1854).

²⁰ Puyallup Tribe v Department of Game, 391 U.S. 392 (1968). (Puyallup I) at 398.

²¹ Department of Game v Puyallup Tribe, 414 U.S. 44 (1973) (Puyallup II).

²² United States v Washington, 496 F.2d 620 (9th Cir.), cert. denied, 419 U.S. 1032 (1974).

²³ Puyallup Tribe, Inc. v Department of Game, 433 U.S. 165 (1977) (Puyallup III).

²⁴ Antoine v Washington, 420 U.S. 194, 207 (1975) Holding that the Supremacy Clause precluded application of state game laws to hunting off-reservation where a federal treaty extended those rights to the Indians. But, the state may regulate to ensure public health and safety if the regulations do not discriminate and are "reasonably necessary to prevent a substantial risk to public health or safety." Lac Courte Oreilles Band v Wisconsin, 668 F. Supp. 1233 (1987) at 1241-42.

²⁵ Hunting, fishing and gathering rights.

²⁶ See Mille Lacs Band of Chippewa Indians v Minnesota (1994), supra note 11, for a detailed discussion of the history of a relevant treaty, its negotiation, and the judicial construction of its application in the determination of usufructuary rights in territory ceded by the Mille Lacs in 1837.

²⁷ This authority arises from the treaty power and the Indian commerce clause U.S. Const. art II, §2, cl. 2; and art. I, §8, cl.3.

²⁸ United States v Dion, 476 U.S. 734, (1986).

²⁹ Id. at 738-740.

³⁰ The Interior Department's regulations authorize permits only to "individual Indians who are authentic, bona fide practitioners of such religion." Fed. Reg. 976 (1963).

³¹ United States v Dion, supra note 28 at 745-746.

³² For an example of the vacillation in Federal Indian Policy see Larry A. DiMatteo and Michael S. Meagher, Broken Promises: The Failure of the 1920's Native American Irrigation and Assimilation Policies, 19 U. Hawaii L. Rev. 1 (1997).

³³ The Endangered Species Act of 1973, 16 U.S.C. §1539 (e); The Marine Mammal Protection Act of 1972, 16 U.S.C. §1371 (b).

³⁴ Michael L. Chiropolos, Inupiat Subsistence and the Bowhead Whale: Can Indigenous Hunting Cultures Coexist with Endangered Animal Species? 5 Colo. J. Int'l Envtl L. & Pol 213, 231, note 124 (1994).

³⁵ International Convention for the Regulation ff Whaling, Dec. 2, 1946, 62 Stat. 1716, 161 U.N.T.S. 74.

³⁶ Chiropolos, supra note 34, at 222.

³⁷ The Endangered Species Act of 1973 defines a threatened species as a "species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 USCA §1532 (20).

³⁸ An endangered species is one which is "in danger of extinction throughout all or a significant portion of its range... Id. (6)

³⁹ United States v Nuesca; United States v Kaneholani, 945 F.2d 254 (9th Cir. 1991) 257-258.

⁴⁰ Lawrence Watters and Connie Dugger, The Hunt for Gray Whales: The Dilemma of Native American Treaty Rights and the International Moratorium on Whaling, 22 Columbia Journal of Environmental Law 319 (1997).

⁴¹ Id. 333-334.

⁴² Id. at 337 n116.

⁴³ County of Yakima v Confederated Tribes and Bands of the Yakima Indian Nation, 112 S. Ct. 683, 687 (1992).