Tribal Sovereignty: Case Studies A Guide for Montana High School Teachers Iris: Welcome, my name, who I am Kevin: Same This is the second in a two part series on tribal sovereignty. Teachers should have seen two other powerpoints before this one to give the necessary background: History and Overview, and Tribal Sovereignty.

Overview Purpose Encourage Montana’s high school social studies teachers to integrate information about tribal sovereignty throughout high school government and history courses Individual slides contained in this power point will visually enhance lesson plans; however, this presentation is not intended to be used as a single lesson on tribal sovereignty. This powerpoint is one of several sponsored by the Office of Public Instruction and Indian Education for All, in conjunction with The University of Montana School of Law Indian Law Clinic. Our hope is that Montana’s teachers will use the information you learn in these powerpoints to integrate information about tribal governments and issues throughout your government and history classes.

Introduction Why do high school teachers need this information? Montana’s Constitution, Article X, Section 1(2): “The State recognizes the distinct and unique cultural heritage of American Indians and is committed in its educational goals to the preservation of their cultural integrity.” MCA 20-1-501: schools should encourage students “to learn about the distinct and unique heritage of American Indians” and “all school personnel should have an understanding and awareness of Indian tribes” To address four of the seven essential understandings developed by Indian educators Montana’s Constitution, and recent court cases, emphasize that teachers must integrate information about tribes into their classes. Tribal Sovereignty is a particularly important subject for Montana’s teachers and students to thoroughly understand.

Essential Understandings Indian educators from each tribe gathered to discuss topics for educators and students to learn about Indian people. These topics became the Seven Essential Understandings This presentation addresses the first, fourth, fifth, and seventh Essential Understandings The 7 essential understandings are the principles underlying a thorough knowledge of Indian people and tribes that Montana’s Indian educators determined all Montana teachers and students will have.

Essential Understanding 1 “There is great diversity among the 12 tribal Nations [located in] Montana in their . . . governments.” In keeping with the original status of tribal relations with the European countries and the U.S. government originally related to tribes individually on a nation-to-nation basis. Therefore, tribes have very different experiences of sovereignty depending on their treaty language and how they are recognized by the government. This powerpoint specifically highlights how different treaties and court cases can cause individual Montana tribes to have different rights.

Essential Understanding 4 “Reservations are lands that have been reserved by the tribes for their own use [or set aside for tribal use] through treaties, statutes, and executive orders . . . .” “[Historically] land should be acquired from the Indians only through their consent with treaties [because] both parties to treaties were sovereign powers.” Tribal sovereignty is based on the historic relationship between tribes before Europeans arrived, and between tribes and Europeans. Treaties gave Indians certain rights because the tribes large acreages of land to the Europeans and the U.S. government.

Essential Understanding 5 “Federal Indian policies . . . have affected Indian people and still shape who they are today. Much of Indian history can be related through several major federal policy periods [including the] Treaty Period.” [The major federal policy periods are Treaty, Removal and Relocation, Allotment and Assimilation, Reorganization, Termination, and Self-determination. See materials from the powerpoint presentation entitled Tribal Relations with the United States: History and Overview.] The treaties from the treaty period remain important today in determining tribes’ rights to hunt and fish, among other things. The federal periods, in general, sought to end tribal sovereignty through assimilation, acculturalization or termination. These periods have had a profound impact on tribal policies and Indian people.

Essential Understanding 7 “Under the American legal system, Indian tribes have sovereign powers, separate and independent from the federal and state governments. However the extent and breadth of tribal sovereignty is not the same for each tribe.” This concept is addressed in this powerpoint through case studies of different tribes’ sovereign powers (rights).

Content Brief overview of the information presented in Tribal Sovereignty Contemporary issues (in the form of 5 cases) highlight differences in tribes’ rights depending on treaty language This powerpoint compliments the Tribal Sovereignty powerpoint. Viewers will be asked to apply the information learned in Tribal Sovereignty to the cases presented here. Teachers who will use these cases in a classroom will find it’s essential to teach students in the order presented here: first the overview about sovereignty, then the specifics about treaty language, then each case in order.

Learner Outcomes After this presentation, teachers should be able to Explain how Stevens and Fort Laramie Treaty language affects tribes’ rights Distinguish different ways courts approach treaty language Like in the other powerpoints in this series, this powerpoint will have quiz prep questions scattered throughout that focus on these learner outcomes. There will be a quiz at the end of the powerpoint for teachers to submit to OPI for credit.

General Principle of Sovereignty Power and Control The power of a governing body to exercise both legal and physical control over the people, land and resources found within a defined territory Tribal sovereignty is based on the same principle as sovereignty for other nations.

U.S. Government and Tribes’ Sovereign Relations Tribes treated as sovereign nations by U.S. government through treaties and trade Article VI of the U.S. Constitution: treaties are the Supreme Law of the Land Non-Intercourse Act (1790): Congress wanted to protect tribal sovereignty and land; the Act declared invalid any “purchase, grant, lease, or other conveyance of lands” from tribes unless approved by U.S. government Before contact with Europeans, tribes treated other tribes as sovereign nations. After contact, European governments related to tribes through treaties and trade on a nation-to-nation basis. After formation of the U.S., the U.S. government continued to enter into treaties and trade with tribes. The early laws of the United States, including the Constitution and the Non-Intercourse Act, clearly established a nation-to-nation relationship between tribes and the United States government.

U.S. Government and Tribes’ Trust Relationship The Supreme Court’s “Marshall Trilogy” laid the foundation of Indian law, and established a trust relationship between the U.S. Government and tribes Tribal trust land is held in trust for the tribes by the U.S. Government The U.S. Government has duties to manage tribal trust land in the tribes’ best interest (to protect the land and the tribes) Tribes may use and reside on tribal trust land, and cannot sell it unless given permission by the U.S. Government The fourth Chief Justice of the U.S. Supreme Court, Justice Marshall, decided three cases in the early 1800s that laid the foundation for Indian law, sovereignty and rights. One of the cases, Cherokee v. Georgia, established a guardian to ward relationship between the U.S. government and tribes. This created a trust relationship between tribes and the U.S. This information is useful in government classes discussing the U.S. Supreme Court.

Treaty Tribes: Rights Treaties (and the rights within them) are the supreme law of the land Rights may be express or inherent Express rights are expressly stated in the treaty Inherent rights are not expressly stated in the treaty Treaties contain different kinds of rights. Express rights are written out in the treaty. Inherent rights come from or support express rights, but are not written out in explicit language in the treaty. The courts recognize both kinds of rights.

Inherent Treaty Rights Tribal powers normally associated with a sovereign are inherent Inherent rights are retained by the tribe during treaty negotiations Examples include the right to govern, determine membership, and rights to hunt and fish Inherent rights are powers of the tribe to carry out its sovereign powers. For example, a treaty might not expressly state that a tribe has the right to make laws. However, making laws is inherent in the tribe’s ability to govern its membership, and governing its membership is a sovereign right. Therefore, the tribe has the inherent right to govern its people through making and enforcing laws, etc..

Losing Inherent Treaty Rights A tribe may expressly give up inherent rights in a treaty or another legally-recognized document The Constitution allows Congress to expressly divest tribes of treaty rights The Supreme Court has divested some tribes of certain treaty rights (called abrogating treaty rights) The Court has no constitutional authority to abrogate treaty rights There are very few ways a tribe can lose an inherent treaty right. Obviously, a tribe can sign a treaty or document with the federal government that expressly abdicates the inherent treaty right. Congress has plenary power (according to Cherokee v. Georgia) to make laws that divest tribes of treaty rights. The president also has the power to divest tribes of treaty rights. The Supreme Court has heard cases in which losing tribes’ inherent treaty rights is at issue. In some of the cases, the Court held that the tribes no longer have the inherent treaty rights. We discuss examples of these cases in detail in this powerpoint. Technically, the separation of powers in the Constitution, and laws of the U.S. ONLY give congress and the president the right to abrogate tribes’ treaty rights, not the Supreme Court. This information is useful for lessons on the Constitution in general and how the Constitution relates to tribes.

Interpreting Treaties Sometimes a court will determine a tribe’s treaty rights by interpreting ambiguous treaty language Court interpretation rules (canons of construction) Construe treaty language in favor of tribes Interpret treaty language as tribes would have understood it Interpret treaties to fulfill U.S. trust obligations (the duties of the U.S. government to protect tribal interests) Since a court cannot (technically) abrogate an inherent treaty right, the court must interpret ambiguous treaty language in favor of tribes and in a way that fulfills the U.S. trust obligation to tribes to protect their land and resources. This information is useful when studying court rules in government classes (put this in the other presentation too).

Treaty Tribes in Montana Stevens Treaty Tribes: Blackfeet, Confederated Salish and Kootenai Fort Laramie Treaty Tribes: Assiniboine and Gros Ventre (Fort Belknap Reservation), Assiniboine and Sioux (Fort Peck), Crow Most tribes located in Montana were federally recognized by treaties. The Stevens and Fort Laramie Treaties were later treaties with western tribes, and both had an overall goal to open up large areas of land for white settlement and provide for transportation routes. In consenting to construction of roads and forts, the tribes received annuities in the form of food, gifts, and other useful items. While similar, Stevens treaties and Fort Laramie treaties were also different from each other.

Stevens Treaties Each tribe negotiated individually with territorial Governor Stevens (1854-1855) Goals Establish tribal territory in order to open up remainder to non-Indian settlement Establish transportation routes Establish peaceful relationship with U.S. government Abstain from hostilities and cultivate good-will and friendship Protect traditional rights The Blackfeet Tribe and the Salish and Kootenai Tribes negotiated their treaties separately with the Washington territorial governor Isaac Stevens.

Stevens Treaties Language “...where all the nations, tribes and bands of Indians, parties to this treaty, may enjoy equal and uninterrupted privileges of hunting, fishing and gathering fruit, grazing animals, curing meat and dressing robes.” Treaty with the Blackfeet 1855 “The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.” Treaty with the Flatheads, etc. 1855 These excerpts from two Stevens Treaties between tribes and the U.S. government highlight the importance to the tribes of reserving their hunting, fishing, gathering and pasturing rights on their lands. The language, while similar in intent to reserve these important rights, is slightly different.

Fort Laramie Treaties Each tribe negotiated individually with officers of the U.S. military (1851 and 1868) Goals Establish land under tribal control and land under U.S. control and assign specific land to particular tribes Compensate tribes for lost game Create safe passage for non-Indians through erection of roads and forts, and identify Indians who harmed non-Indians The Fort Laramie treaties differed from Stevens treaties in their focus on safe passage for non-Indians, needed at this time by miners traveling to mining camps on the Upper Missouri River through Crow land. The U.S. government specifically chose to assign specific land to particular tribes to make negotiating land cessions from individual tribes easier. Obviously, it is easier to get permission from one tribe’s government to cede land to the U.S. than from several tribes’ governments.

Fort Laramie Treaty Language Indians “shall have the right to hunt on unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts.” Treaty of Fort Laramie with the Crows, 1851 This excerpt from the Fort Laramie Treaty with the Crows highlights the emphasis on maintaining safe relations between tribes and non-Indian settlers. Like the Stevens Treaty with the Flatheads, it also shows the importance of hunting rights for the tribe.

Comparison “privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land” Treaty with the Flatheads, etc., 1855 “right to hunt on unoccupied lands” Treaty of Fort Laramie with the Crows, 1851 The differences in these treaties seem unimportant. After all, “open and unclaimed land” sounds pretty much the same as “unoccupied lands.” But the courts have interpreted this language in treaties very differently as we will see in the remainder of the slides.

QUIZ PREP What is the general definition of sovereignty? How has tribal sovereignty been limited by court cases and U.S. law? Name examples of express and inherent treaty rights. What is a court’s responsibility when interpreting treaty language? How might a court abrogate a tribe’s treaty rights?

Contemporary Issues Pertaining to Tribal Sovereignty Tribal sovereignty is of great importance to tribes today; issues range from hunting and fishing rights to determining criminal and civil jurisdiction on and off reservation The following court cases highlight current sovereignty issues for tribes in Montana and the State of Montana As we move into the cases, it is important to remember a couple of basic principles. Tribal sovereignty is of utmost importance to tribal nations. A tribe’s sovereign powers to oversee its own land and activities on that land, and to hunt and fish on its land, are rights and powers that have existed for tribes since time immemorial. They weren’t given to tribes by the U.S. government – they are retained as part of continuing tribal sovereignty. Only in the last couple hundred years have those rights been limited by treaties, and U.S. government laws and court cases. Since tribal sovereignty is so important, courts must not infringe upon that sovereignty by abrogating tribal government’s rights, and so courts must interpret vague treaty language in favor of tribes. Let’s see how the courts are doing in interpreting treaty language according to court canons of construction.

State v. Stasso 1977 Montana Supreme Court Can Stasso, an enrolled member of the Confederated Salish and Kootenai Tribes (CSKT), hunt throughout the year on National Forest Service land that is within the tribes’ historical hunting ground but outside the Flathead Reservation? Let’s start with our own Montana Supreme Court. In this case, Stasso was an enrolled member of the Confederated Salish and Kootenai Tribes which reside on the Flathead Reservation. He was hunting near Pine Creek in Sanders County on Forest Service land was not within the boundaries of the Flathead reservation.

Stasso: Details Stasso shot the deer on land within the historical hunting grounds of the Salish and Kootenai people National Forest Service land is open and unclaimed land (not possessed by particular parties at time treaty was signed) Treaty of Hellgate rights to hunt have not been extinguished Of particular importance is the fact that other court cases have said that National Forest Service land is open and unclaimed land. So, Stasso was hunting on open and unclaimed land that was once part of the Salish and Kootenai tribal hunting grounds. What do you think the court decided?

Stasso: Important Laws Treaty of Hellgate (1855, Stevens Treaty): CSKT tribal members reserved the “privilege of hunting … upon open and unclaimed land” Montana Territorial Act (1864): establishment of the Montana Territory does not impinge on Indians’ rights if the rights are “unextinguished by treaty” Montana Game Laws: no hunting out of season Before going further, it’s helpful to know some important laws that affect this case. First, the Treaty of Hellgate specifically reserved hunting and fishing rights for Confederated Salish and Kootenai tribes. Those rights exist on “open and unclaimed land.” And just because the State of Montana was formed doesn’t negate tribal rights to hunt and fish on state land that is “open and unclaimed.” But there is a state law that doesn’t allow any hunting out of season. Already, I bet you are wondering which will win out. The state law, or the treaty right.

Stasso: Holding CSKT members may hunt on National Forest Service lands within their historical hunting grounds at all times of the year The court decided that the treaty rights are still intact, and that the state may not create a law that infringes a tribal member’s treaty rights.

Question May members of CSKT hunt on private land within their historical hunting grounds without permission any time of the year? Why or why not? So we know that Salish and Kootenai tribal members may hunt on Forest Service land out of season because it is open and unclaimed. What about on private land?

Answer The treaty only refers to unclaimed public lands; therefore, CSKT tribal members may not hunt without permission on private land The answer is no, tribal members may not hunt on private land without permission. Private land is certainly not open and unclaimed.

Question May a Crow tribal member hunt on National Forest Service lands in their historical hunting grounds any time of year? Why or why not? See if your answer is correct by reading the next case Do you think the same holds true for Crow tribal members as held true for Stasso and the Confederated Salish and Kootenai Tribes.

Crow v. Repsis 1995 10th Circuit Court of Appeals Do members of Crow tribe have an unrestricted right to hunt and fish on public lands within the Crow historical hunting grounds in Wyoming? The issue in Crow v. Repsis is almost identical to the issue raised in Stasso. These two cases together are interesting in classes discussing court case language and court interpretation.

Crow v. Repsis: Details Crow tribal member killed an elk on National Forest Service land in Wyoming The National Forest Service land was within the Crow tribe’s historical hunting grounds The event occurred after Wyoming elk-hunting season Very similar facts as Stasso, except a Crow tribal member, in Wyoming and an elk. Do you think those differences are important?

Crow v. Repsis: Important Laws Treaty with the Crows (1851): Crow members “shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon” Wyoming Game Law: must have a Wyoming license to hunt elk in Wyoming The treaty language this time says Crow tribal members may hunt on “unoccupied lands” which is a little different than “open and unclaimed lands.”

Crow v. Repsis: Same as Stasso? Stasso: tribal member can hunt on unclaimed land that was once a part of the tribe’s historical hunting grounds BUT, a prior U.S. Supreme Court case abrogated Crow treaty rights to hunt and fish on unoccupied lands because “game no longer existed; hunting would undermine conservation; federal lands are occupied” So far, it looks pretty similar to Stasso. But it turns out the U.S. Supreme Court had determined in a previous case that “federal lands are occupied.” By deciding that federal lands (like National Forest Service lands) are occupied, the U.S. Supreme Court negated the Crow tribes right to hunt and fish on National Forest Service land.

Crow v. Repsis: Holding The Federal Court in Crow v. Repsis decided that, since the Supreme Court decision that abrogated Crow treaty rights had not been overruled, the rights are still abrogated Without the treaty rights, Crow tribal members do not have an unrestricted right hunt and fish on public lands in Wyoming Therefore, the court in this case had no option but to follow U.S. Supreme Court precedent and decide that Crow tribal members don’t have a right to hunt and fish on public (National Forest Service) lands because they are “occupied.” An interesting side note: Stasso could still hunt on National Forest Service land because the Confederated Salish and Kootenai Tribes treaty doesn’t use the word “unoccupied.” It says “open and unclaimed lands” instead.

Question Does the Supreme Court have the power to abrogate a treaty right without restriction? When the U.S. Supreme Court decided that federal lands are “occupied,” it abrogated the Crow tribe’s treaty right to hunt on “unoccupied lands.”

Who has the Power to Abrogate Treaty Rights? The Constitution gives the right to make treaties to presidents (with congressional approval) The right to make treaties has, in the past, also allowed congress and the president to abrogate treaties Tribes may abrogate their own treaty rights There is no constitutional authority allowing courts to abrogate treaty rights As we discussed before, there are very few ways a tribe can lose an inherent treaty right. Obviously, a tribe can sign a treaty or document with the federal government that expressly abdicates the inherent treaty right. Congress has plenary power (according to Cherokee v. Georgia) to make laws that divest tribes of treaty rights. The president also has the power to divest tribes of treaty rights. The separation of powers in the Constitution, and laws of the U.S. ONLY give congress and the president the right to abrogate tribes’ treaty rights, not the Supreme Court. This is why the courts must interpret treaty language in favor of tribes. So some would argue that the Supreme Court could not abrogate the Crow Tribe’s treaty rights by deciding that all federal land is occupied. However, a similar thing happened in another U.S. Supreme Court case. This information is useful for lessons on the Constitution in general and how the Constitution relates to tribes.

Montana v. U.S. 1981 U.S. Supreme Court Did the treaties that established the Crow Reservation give the Crow the authority to regulate hunting and fishing by non-Indians on the Big Horn River (which flows through the reservation)? In 1981, the U.S. Supreme Court determined whether the Crow tribe has the authority to establish laws that limited fishing by non-Indians on the Big Horn River which flows through the Crow Reservation.

Montana v. U.S.: Treaties First Treaty of Fort Laramie (1851): tribes did not “surrender the privilege of hunting, fishing, or passing over” treaty lands Second Treaty of Fort Laramie (1868) (establishing the Crow Reservation): tribes have “absolute and undisturbed use and occupation” of the land, and non-Indians could not “pass over” the reservation The Crow Treaties were military treaties. They both specifically reserved Crow tribal members’ rights to hunt and fish on tribal land. The second Crow Treaty actually banned non-Indians from passing through tribal land. The information in these cases about state laws v. tribal laws is useful in discussing state and tribal governments.

Montana v. U.S.: Important Laws Dawes Act (General Allotment Act 1887, Crow Allotment Act 1920): allowed non-Indians to purchase Reservation land; today, 28% of Crow Reservation land is owned by non-Indians Crow Tribal Council Resolution 74-05: prohibits non-members from hunting and fishing on the Reservation It is interesting to note that, because of the Dawes Act (also called the General Allotment Act), 28% of the Crow Reservation was owned by non-Indians in 1981 when this case was brought to determine if non-Indians could fish on the Big Horn River.

Montana v. U.S.: Holding Usually tribes have inherent sovereign rights to self-govern (including the right to make rules about hunting and fishing) – inherent rights don’t have to be expressly delegated in a treaty BUT the Court decided that the Crow tribe didn’t need to own the river bed to self-govern So, the treaty had to EXPRESSLY delegate the right to own the river bed to the Crows Treaty rights include all inherent rights associated with a sovereign nation. One of those rights is to self-govern which means treaty tribes retain an inherent right to make laws that affect their lands. These retained inherent rights do not have to be expressly delegated by treaty. In a strange twist, the U.S. Supreme Court decided that the Crow right to make laws about fishing DID have to be expressly stated in the treaty. This decision was a marked change from Supreme Court precedent which had traditionally held that courts must construe treaty language in favor of tribes, and that tribes’ inherent rights to self-govern do not need to be expressly stated in the treaty language.

Montana v. U.S.: Holding Since neither of the treaties expressly gave the Crow Tribe ownership of the bed of the Big Horn River, the Crow Tribe can’t regulate hunting and fishing of non-Indians on the Reservation This can be useful in government and U.S. History classes when discussing Native American issues today.

Question The Crow treaty DOES expressly give the tribe hunting and fishing rights within tribal boundaries. Does the Supreme Court’s decision that the tribe can’t regulate fishing affect the tribe’s rights to hunt and fish? The Court’s decision certainly destroyed the Crow Tribe’s inherent right to regulate fishing on the reservation. Did the decision also affect the Crow Tribes EXPRESS right to fish on the reservation?

Answer Probably. If non-members can fish on the reservation without regulation, there will be fewer fish available for tribal members. It seems highly likely that, without the ability to regulate the fishing on the Big Horn River, the Crow will have fewer fish to catch.

Question If the Court’s decision does affect the Crow’s expressly-given right to hunt and fish, could it mean the Court abrogated the Crow’s treaty right to hunt and fish? So does that mean that the Supreme Court not only abrogated the Crow Tribe’s inherent right to self-govern and regulate fishing, but also abrogated the Crow Tribe’s express right to fish?

Answer Yes

U.S. v. Kipp 1974 Montana District Court Can Blackfeet tribal members enter the part of Glacier National Park that was once part of the Blackfeet Reservation without paying the entrance fee? We’re back to Montana, but to a federal court this time. In this case, the issue was whether Blackfeet tribal members have to pay the entrance fee to enter Glacier National Park.

U.S. v. Kipp: Details When Glacier Park was created, it included the strip of land obtained by the U.S. from the Blackfeet Tribe in 1895 The Blackfeet contract with the U.S. expressly reserved the tribes rights to hunt and fish on the land they gave up, as long as the land remained “public.” Is Glacier Park public land? The answer is in the canons of construction Like some of the cases we’ve already seen, one or two words can be pretty important. In Repsis, the important words were “occupied” and “unoccupied.” In this case, the court had to decide if Glacier National Park is “public.” The court therefore had to work within the canons of construction.

U.S. v. Kipp: Important Laws Stevens Treaty of the Blackfeet (1885) Contract in which U.S. Government obtained strip of land from Blackfeet Tribe (1895): “Indians shall have the . . . right to go upon any portion of the lands and to cut and remove therefrom wood and timber, . . . hunt . . . and to fish in the streams thereon . . . so long as [the lands remain] public.” The Blackfeet, as you may remember, is a Stevens Treaty tribe. After its initial treaty with the U.S. government, the tribe was forced to give up a piece of land that is now Glacier National Park. It signed a contract with the U.S. government that expressly reserved its rights to “go upon any portion of the lands … so long as the land remains public.”

Canons of Construction A court will interpret ambiguous language using canons of construction Construe treaty language in favor of tribes Interpret treaty language as tribes would have understood it Interpret treaties to fulfill U.S. trust obligations (the duties of the U.S. government to protect tribal interests) One of the ways the Court can reach the conclusion that the tribe does not retain an inherent right is through treaty interpretation. If the Court thinks the language of the treaty is ambiguous, it will have to “construct” what the language in the treaty means. Legislative history, court precedent,The courts are supposed to interpret treaties to benefit tribes.

U.S. v. Kipp: Holding Blackfeet tribal members expressly reserved their rights to enter, gather firewood, hunt and fish on the land they gave up The court determined that Blackfeet tribal members would have interpreted “public” to mean all lands not in private ownership Therefore, Glacier National Park is public land Unlike the U.S. Supreme Court, the Montana Federal District Court determined that the Blackfeet tribe, when they signed the treaty, would have thought “public” meant any land not privately owned. Glacier Park is not privately owned – it’s public.

U.S. v. Kipp: Holdings Congressional intent to abrogate a treaty right must be express Congress did not expressly deny Blackfeet tribal members the right to enter the Park Therefore, the statute creating Glacier National Park (and allowing the Park to establish entrance rules and fees) did not abrogate the Treaty of the Blackfeet The Blackfeet tribe’s rights are still in effect Since the contract between the government and the Blackfeet tribe did not expressly abrogate the tribe’s treaty right, Blackfeet tribal members may enter Glacier National Park without paying.

Question How do you compare this holding with the Montana v. U.S. holding? The U.S. Supreme Court, in Montana v. U.S., held that tribes had to expressly retain a right in order to have the right. How does that compare to this holding?

Answer The holdings are difficult to reconcile In Kipp, the court used the canons of construction Construed the treaty in favor of the tribe Decided Blackfeet Tribe’s treaty rights are retained unless Congress expressly abrogates them In Montana, the Supreme Court changed the canons of construction Did not construe treaty in favor of the tribe Decided Crow Tribe’s inherent treaty rights are not retained unless Congress expressly gives them

Question May Blackfeet tribal members enter the part of Glacier National Park that was once part of their reservation and hunt and fish? The Kipp case decided a Blackfeet tribal member may enter Glacier National Park without paying the entrance fee. Do you think a Blackfeet member can also hunt and fish in the part of Glacier National Park that was their reservation?

Answer Yes. A court has already held, based on the Kipp case and the Treaty of Blackfeet, that Blackfeet tribal members may hunt and fish in Glacier Park.

Question May Blackfeet tribal members enter the part of any National Forest land that was once part of their reservation and hunt and fish without a Montana license?

Answer It is highly likely that, based on Stasso and Kipp, a court would hold that Blackfeet tribal members may hunt and fish on National Forest land without a Montana license

Confederated Salish and Kootenai Tribes (CSKT) v Confederated Salish and Kootenai Tribes (CSKT) v. Namen 1982 9th Circuit Court of Appeals May Jim and Mary Namen, owners of Jim’s Marina on Flathead Lake (on the Flathead Reservation), and non-members of the CSKT, build and maintain docks on the lake? The final case is not about hunting and fishing. It is about a different sovereign right of tribes. In this case, which was heard first in a Montana Federal District Court and then in the 9th Circuit Court of Appeals, the issue is whether the tribe can stop a non-Indian landowner on the reservation from building docks on Flathead Lake. This case is interesting for contemporary local government issues.

CSKT v. Namen: Details Jim’s Marina built docks into the southern part of Flathead Lake in Polson CSKT alleged Jim’s Marina (1) trespassed by building docks into the lake and (2) violated the Shoreline Protection Ordinance by interfering with tribal fishing rights and degrading the water Since the Flathead Reservation was also an allotted reservation, non-Indians own land on the Flathead reservation. The land that houses Jim’s Marina is owned by non-Indians through allotment.

CSKT v. Namen: Details Namen said the Flathead (Allotment) Act terminated the Flathead Reservation Namen also said CSKT doesn’t own the lake bed and so the tribal laws don’t apply to him Remember the “bed of the Big Horn River” language in Montana v. U.S.? The U.S. Supreme Court looked closely at whether the treaty expressly gave the Crow Tribe the ability to regulate the bed of the Big Horn River. This case is similar, because the court had to look at whether the treaty expressly gave the Confederated Salish and Kootenai Tribes the ability to regulate the bed of the lake. The treaty in this case expressly gave the tribes the southern half of Flathead Lake. The tribes issued a law called the Shoreline Protection Ordinance that regulates structures (including docks) on the south half of the lake. It was this law that Jim’s Marina said didn’t apply to them.

CSKT v. Namen: Important Laws Hellgate Treaty (1855): defined boundaries of the Flathead Reservation as including the southern half of Flathead Lake Allotment Act (1887) and Flathead Act (1904): allowed non-Indians to purchase Reservation land CSKT “Shoreline Protection Ordinance” (1977): regulates structures on the southern half of Flathead Lake Since the Hellgate Treaty expressly reserved the south half of the lake for the tribes, the court did not have to follow the U.S. Supreme Court precedent of Montana v. U.S.

CSKT v. Namen: Holdings The Allotment Act did not terminate the Flathead Reservation because Congress did not expressly state it intended termination when it created the Act The U.S. government holds the lake bed in trust for the CSKT The CSKT may restrict buildings on the lake according to its laws While in the most technical sense the U.S. government holds title to the lake bed, it does so for the benefit of the tribe. The U.S. government can easily meet its trust responsibilities to the tribe by allowing the tribe to protect the lake through its own laws.

Question Compare CSKT v. Namen (the tribe owns and controls the lake bed) with Montana v. U.S. (the tribe does not own or control the river bed) Why a different holding?

Answer Because the Hellgate Treaty expressly refers to Flathead Lake, thus conveying use and management of to the lake bed to the tribes The Crow Treaty did not expressly convey the Big Horn River to the Crow Tribe

Question The Hellgate treaty expressly gave ownership of the lake bed to the CSKT Do you think ownership of a lake contained within reservation land MUST be expressly given in the treaty, or is it inherent in the creation of the reservation? As a hint, you might think about this in terms of what the Montana v. U.S. Court would answer, and what the U.S. v. Kipp court would answer.

Answer Montana v. U.S. might say it must be expressly given, but U.S. v. Kipp might say the ownership of the land and waters on a reservation is inherent

Question Based on the cases you’ve studied, do you think the Crow Tribe can regulate docks on the Bighorn River?

Answer The CSKT treaty gives the tribe express ownership of the bed of Flathead Lake But the Crow Treaty does not give the tribe express ownership of the Bighorn River U.S. v. Montana would say the Crow Tribe’s right to regulate docks on the river must be express in the treaty

Final Question In January, 2006, Montana Attorney General Mike McGrath and Montana Governor Brian Schweitzer had to decide whether Nez Perce tribal members could hunt bison on public land in the Gallatin National Forest outside Yellowstone Park. What did the State of Montana decide? What information do you need to answer this question?

Additional Information The Nez Perce Tribe signed a Stevens Treaty The Nez Perce Treaty states that the tribe has the “the privilege of hunting . . . upon open and unclaimed land” The Gallatin National Forest is part of the Nez Perce Tribe’s historical land

Answer The Nez Perce Tribe’s treaty rights allow the tribal members to hunt on “open and unclaimed land” that was part of their historical hunting grounds National Forest Service land is “open and unclaimed land” according to the Stasso case Nez Perce tribal members may hunt bison in the Gallatin National Forest