I know what you’ve been thinking. You’ve been staying up at night tossing and turning, wondering to yourself, “What is a reserved right in a treaty?”
Well, say goodbye to sleepless nights for I shall tell you what a reserved right is. Not only will you then be able to sleep, you will also understand why some Indians can hunt or fish in places, at times or in ways plain old United States citizens cannot, or why some Indians are allowed to hunt, fish or gather off their reserved lands. What’s more, you will be liberated from thinking that Indians are getting unfair special treatment based on their race, which is a common misunderstanding for those who haven’t fully grasped the concept of a reserved right.
If you’ve been following my little series on American Indian Political Issues, you’ll know what treaties are and why they are important. You’ve probably (correctly) inferred that a race of people cannot treaty with the United States. (By definition, a treaty is an agreement between sovereigns.)
Rights that Indians have by treaty are not based on their race, then. They get those rights because they are citizens of a nation that made treaties with the United States. Or, rather, they reserved those rights for themselves, since the United States didn’t give them those rights. This is why they are called reserved rights: They are rights that tribes reserved for themselves when they were treating with the United States.
In a quick internet search, I found the following description by the Milwaukee Public Museum to be a clear and simple explanation of what a reserved right is and how failure to understand or appreciate reserved rights creates conflict between Indians and non-Indians:
Some provisions were included in the treaties for the Indians to continue to use the land they ceded to the government. Prior to selling the land, the United States recognized the Indians’ ownership of the land. They also recognized that the Indians possessed usufructuary rights to the land. Usufructuary rights were the rights of the Indians to hunt, fish, and gather forest products off of the land. In some cases, the Indians sold their lands to the United States, but they reserved their usufructuary rights. In the case of the 1837 and 1842 Ojibwe treaties, the Ojibwe bands of Wisconsin sold their homelands to the United States, but they wanted provisions added to the treaties that recognized the continuance of their usufructuary rights. Thus, they no longer owned the land, but both the United States and the Ojibwe agreed that the Ojibwe could continue to use the land for hunting, fishing and gathering. Because they retained these rights in their treaties, these are referred to as reserved rights.
During the late nineteenth and early twentieth centuries, these reserved rights, especially those of the Ojibwe, were not always respected. The state of Wisconsin refused to recognize the Ojibwes’ off-reservation hunting and fishing rights in their ceded territory, and the federal government did not always enforce the Indians’ rights as they should have. Things began to change for the Ojibwe and other tribes in the United States during the 1960s, when federal courts began to look at Indian treaty rights in a more fair and unbiased fashion. What emerged were “canons of construction,” or new legal interpretations that sought to preserve rights that Indians reserved in treaties. The United States Supreme Court established these canons, which asserted that:
1. treaties must be liberally construed to favor Indians;
2. ambiguous expressions in treaties must be resolved in favor of the Indians;
3. treaties must be construed as Indians would have understood them at the time they were negotiated;
4. treaty rights legally enforceable against the United States should not extinguished by mere implication, but rather explicit action must be taken and clear and plain language used to abrogate (or abolish) them.
And then there’s this tidbit from the same site:
Lack of knowledge about treaty rights has caused a great deal of misunderstanding among non-Indians, particularly the off-reservation hunting and fishing right of the Ojibwe. During the 1980s, Whites in northern Wisconsin held emotional and often violent rallies to protest the Ojibwes’ reserved treaty rights. The rancor has died down during the 1990s, but smoldering resentment still exists. There have even been calls in the last twenty years for the federal government to abrogate all reserved treaty rights of American Indians. This has not happened, and it will not happen as long as the U.S. government continues to recognize the treaties that it made with the Indian tribes.
Knowing all this helps one follow and assess current cases, like the Makah/Gray Whale case:
Frankie Gonzales, Wayne Johnson, Andrew Noel, Theron Parker and William Secor Sr., all of Neah Bay, are accused of harpooning and shooting a gray whale in the Strait of Juan de Fuca Sept. 8 without tribal permission and without a necessary waiver to hunt a whale under Makah’s treaty with the United States.