The Endangered Species Act
and American Indian Rights
Legene Quesenberry
College of Business Administration
Clarion University
Copyright © 2000 by Legene Quesenberry
Cite as 1 ALSB INT'L BUS. L.J. 34
The initial Supreme Court cases controverting tribal sovereignty and treaty rights
established principles that still influence modern decisions. When the state of Georgia
enacted statutes which, inter alia, criminalized action by the Cherokee to function
as a government in an attempt to force the federal government to extinguish title to
Indian lands held by the Cherokee, the Cherokee Nation petitioned the Supreme Court in an
original action brought as a "foreign state" pursuant to Article III section 2
of the Constitution. Chief Justice Marshall characterized the tribe as "a distinct
political society separated from others, capable of managing its own affairs and governing
itself."1 and that treaties between the
tribe and the United States recognized it as such. But, the Cherokee lacked standing to
proceed to the issue on the merits because Indian Nations were designated domestic
dependent nations not foreign states within the context of the Court's original
jurisdiction.
The issue of tribal sovereignty was addressed by the Supreme Court again the next year
through the appeal of criminal convictions involving missionaries living in Cherokee
territory. Georgia required non-Indians residing in Indian territory to obtain licenses
from the state's executive. These missionaries had been convicted in state court for their
failure to do so. In a decision overturning the convictions, Justice Marshall opined that
the treaty with the Cherokee, along with the Trade and Intercourse Acts2 "manifestly consider the several Indian Nations
as distinct political communities, having territorial boundaries, within which their
authority is exclusive..."3 He
concluded:
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....4
This acknowledgement that tribes are independent entities with inherent powers of
self-government is still the law. However, the independence of tribes is subject to the
considerable powers of Congress: its ability to modify a tribe's status, to abrogate
treaties, to regulate conduct exclusive of the states, and to extend its protection to
Indian land, people, and property.
Although treaties with Indian nations usually contained poetic assertions that the
treaty would remain in effect "as long as the grass shall grow", it is clear
that they possess the same fragility as statutes and international treaties. An example of
the Congressional power to abrogate treaties is provided by the Supreme Court's decision
in The Cherokee Tobacco. The treaty provided that tobacco sold in Cherokee
territory was exempt from federal tax. Congress then passed a statute taxing such tobacco.
The Cherokee attempted to enforce their treaty rights, but the court found that none
existed. The subsequent Congressional action of passing a statute contrary to the treaty
superseded that treaty provision.5 The
seminal case regarding abrogation involved the Kiowas and Comanches who attempted to
prevent future loss of their land by entering a treaty. The treaty provided that any
cession of community land to the federal government could only be accomplished after
approval by 3/4 of the adult males of the tribes. A cession was arranged, but not approved
by the required vote. Congress simply passed a statute effectuating the cession. The Court
upheld the statute noting" plenary authority over the tribal relations of the Indians
has been exercised by Congress from the beginning, and the power has always been deemed a
political one...as with treaties made with foreign nations, the legislative power might
pass laws in conflict with treaties made with the Indians."6 When it does so it eclipses the treaty provision.7
Since treaty making is within the purview of the federal executive they transcend
conflicting state law.8 In County of
Oneida v. Oneida Indian Nation, the court invalidated a treaty negotiated in 1795
which transferred 100,000 acres of land from the Oneida to the State of New York because
the federal government was not a participant in that treaty. The invalidation allowed a
claim for damages by the tribe against the state.9
The Court historically had been progressive in its treatment of American Indians and
had served as a bulwark in the wild vacillation between the polarized political behaviors
of assimilation and separatism. Rules of construction employed to interpret treaties
demonstrate the Court's willingness to fulfill the federal trust responsibility10 toward tribes while recognizing its
position in the balance of power and the need for legal evolution. Treaties have been
traditionally construed in favor of the Indian tribes based on the qualities of
negotiation as well as language and cultural barriers.11
Treaties were negotiated and written in English, the tribal representative was often
chosen by the government,12 interpretation
of important concepts was subject to the imprecisions of translation, and treaties
delineated concepts foreign to Indian people such as land ownership. Regarding
interpretation, the Court determined that treaties were to be construed as they were
understood by the tribal representatives who participated in their negotiation.13 It was believed that interpretation would
best accomplish the protective purpose of the treaty with any ambiguities to be construed
against the drafter.14 In an 1834 treaty
which reserved land for the Menominee "to be held as Indian lands", the court
found an implied guarantee of hunting and fishing rights on those lands.15 The striking aspect of Menominee is that this
implied right survived a congressional termination of the tribe.16 Treaty language reserving the right to hunt or fish
at "all usual and accustomed places," created an easement to cross private lands
and reserved to the tribe the right to hunt or fish outside of the territory (reservation)
designated for that tribe.17 However,
if the language of the agreement is clear, then it will be applied regardless of an
unfavorable decision against the Indian party. For example, where a tribe ceded land
without indicating an intent to retain hunting and fishing rights, the state, pursuant to
its police powers, is free to regulate those activities since there is no superior law or
agreement in effect which would displace the state's rights.18 Further, state regulation of wildlife or
habitats for the purpose of conservation has been upheld. It is in this issue of
conservation--at the state and federal level--that the discordance between treaty rights
and environmental issues take their modern form.
One highly contentious case involved the rights afforded the Puyallup Tribe in a 1854
treaty. The treaty contained the following provision:
The right of taking fish, at all usual and accustomed grounds and stations, is further
secured to said Indians,in common with all citizens of the Territory...19
This clause, which in some version appears in many treaties with Northwest Indians,
retains off-reservation fishing rights. The Indians were exercising this right by net
fishing in rivers to catch migratory fish, Salmon and Steelhead. Washington state
attempted to regulate this method of fishing by prohibiting the use of nets and applied
this prohibition to Indians. The Supreme Court held that the state could not qualify the
Indians right to fish at "all usual and accustomed" places. "...But the
manner of fishing, the size of the take, the restriction of commercial fishing, and the
like may be regulated by the State in the interests of conservation, provided the
regulation meets appropriate standards and does not discriminate against the
Indians."20
This case marked the Court's egress from the position of prohibiting state interference
with federally guaranteed treaty rights. Washington, then, permitted net fishing of Salmon
by Indians but banned net fishing of Steelhead. The Court found that this limitation had
the discriminatory effect of granting the entire Steelhead run to non-Indian
sportsfishers.21 While Washington state
was dealing with the second remand of this case by limiting the Indians to 45% of the
natural run of Steelhead, a federal court of appeals had determined that the Puyallup
Reservation had not been abandoned.22 The
tribe appealed, taking issue with the percentage of fish allowed; and further argued that
the state could not regulate fish on the newly defined sites because they were on the
reservation.
The Supreme Court observed that if Indians were allocated an unrestricted number of
migratory fish on the reservation there would not be any fish available to equally
entitled non-Indians. The Court also upheld the doctrine of conservation necessity
articulated in Puyallup I.23 An argument
can be made in support of the Court's stance. Between the decision dates of Puyallup I
(1968) and Puyallup II and III (1973 and "77 respectively) public awareness and
activism had begun to politicize environmental problems and Congress had responded in 1968
by passing the National Environmental Policy Act. Congress also passed sweeping amendments
to the Clean Air Act of 1963 and the Federal Water Pollution Control Act (now the Clean
Water Act) in 1970 and '72. The Endangered Species Act passed in 1973. The concepts
defining resources and their uses clearly influenced the more environmentally minded
decision of Puyallup II and its successors.
The Supreme Court reconfirmed that a state's ability to regulate a tribe's exercise of
off-reservation treaty rights depended on its ability to "demonstrate that its
regulation is a reasonable and necessary conservation measure, and that its application to
the Indians is necessary in the interests of conservation."24 It is in this, and the state's interpretation of
treaties regarding the existence and extent of usufructuary rights25 where the debate currently rages.26
When Congress chooses to exercise its plenary power27
over Indian affairs by abrogating a treaty right, the state and the federal government may
then regulate that activity. Abrogation generally occurs when a subsequent congressional
statute is inconsistent with a treaty provision. A primary question is whether Congress
intended abrogation. Where Congress passed statutes making criminal the taking of Golden
and Bald Eagles, the Indian defendant was not able to use his 1858 treaty rights to hunt
such birds as a shield from prosecution even though the hunting occurred on reservation
property.28 The Court articulated a high
standard for finding abrogation:
What is essential is clear evidence that Congress actually considered the conflict
between its intended action on one hand and Indian treaty rights on the other, and chose
to resolve that conflict by abrogating the treaty.29
The Court found that the provision in the Eagle Protection Act allowing Indians to take
eagles pursuant to a permit reflected an intent by Congress to apply the statute to
Indians.30 Interestingly, the abrogation
of the treaty right to hunt eagles by the Eagle Protection Act prohibited the defendant
from resurrecting that treaty right against an Endangered Species Act violation.31
The incompatibility of some treaty rights and environmental ethics presents a
formidable challenge to idealism especially when the international community is affected.
Such a challenge is presented by the Inupiat's subsistence hunting of Greenland Right
Whales (Bowhead Whales). Alaska's late entry into the Union and its physical isolation
insulated Native Americans there from the vacillation of federal Indian policy.32 The history of treaty negotiation and
statutory abrogation of preceding agreements with Alaskan Natives provided the latter with
stronger bargaining positions. They were also better prepared to represent their interests
in Congress.
In addition, during the Sixties and Seventies, Congress responded to social equity
issues concerning treatment of Native Americans. The passage of the Indian Civil Rights
Act in 1968 and the American Indian Movement made Congress more sensitive to aboriginal
rights. Recognition of those rights is embodied in two major pieces of environmental
legislation impacting on the issue of hunting whales--the Endangered Species Act and the
Marine Mammal Protection Act. Both exempt Native Alaskans from their provisions.33 However, in order to procure the right of
the Inupiats to take approximately 146 Bowhead, the United States, as a member of the
International Whaling Commission (IWC), bartered away a sperm whale quota increase for
Japan and the USSR of more than 900% (from 763 to 6,444).34
Despite these exemptions, parties to the International Convention for the Regulation of
Whaling35 are not without a remedy in the
event of a threat of extinction. Through the IWC, members may vote to suspend hunting of a
particular whale; a right that was exercised regarding the Inupiats in 1977.36
The language of the exemptions limits their scope to Native Alaskans. Courts have not
stretched that language to extend hunting rights to other groups exerting a treaty right
to hunt endangered species. Two Native Hawaiians appealed their convictions under the
Endangered Species Act arguing it does not abrogate their right to hunt green sea turtles
(a threatened species)37 and monk seals
(an endangered species).38 The court first
determined that there was no treaty right to be invoked by the defendants. They then
argued that exempting one aboriginal group but not another violated the Equal Protection
Clause. Partly because Native Hawaiians do not have a subsistence need for either animal,
the court determined that Native Hawaiians are not "similarly circumstanced" to
Native Alaskans. Further, the exemptions in the Endangered Species Act do not discriminate
based on race, but rather on food supply and culture. The standard of inquiry is
"rational basis" not "strict scrutiny".39
The most recent appearance of this issue occurred in 1995 when the Makah Tribe, an
Indian nation in the Pacific Northwest, announced plans to recommence whaling. The right
to hunt Gray whales has been preserved, they claim, by their 1855 treaty.40 Regardless of the political impact this issue has on
the international community, it is doubtful the Makah will successfully assert this right
domestically. The Makah themselves are divided on this issue: elders have publicized their
opposition and some have aligned themselves with anti-whaling factions.41 The Ninth Circuit has narrowly applied the
exemptions of the ESA and MMPA to exclude aboriginal groups other than Alaskans--an issue
which assumes the Gray Whale will remain on the endangered species list. The greatest risk
to the Makah is a loss of public sympathy and support for other rights if they pursue this
course of action. The price of whale meat at $80.00 per kilo in Japan makes a whale worth
about one million dollars,42 a fact not
likely to be lost on an anti-whaling public. Hunting whales may also fuel animosity that
can show itself in state legislation. The current composition of the Supreme Court seems
less willing to prevent state interference. This Court's view is illustrated by its
statement that "the platonic notions of Indian sovereignty that guided Chief Justice
Marshall have, over time, lost their independent sway."43
Native Americans enjoy a respected position in the current environmental movement which
they should exploit. An activity such as whaling may prove to be the catalyst in the
destruction of the very thing they wish to preserve.
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