Treaty Rights - Passamaquoddy Tribe

Treaty Rights and Reserved Rights

WHEREAS, the Passamaquoddy Tribal Government has the duty to obligation to its members to protect and ensure their aboriginal rights. The Indian Township Council has authorized tribal members to fish for elver, eels or any other fish on the St. Croix river. These rights were reserved in the treaty of 1794 which states: “to said Indians the privilege of fishing on both branches of the river Schoodic without hindrance or molestation and the privilege of passing the said river over the different carrying places. The said islands, tracts of land and privileges to be confirmed by the Commonwealth of Massachusettes to said Indians and their heirs forever.”

The river Schoodic was the old name for what is now called the St. Croix river.

The 1794 treaty was confirmed by the 1980 Land Claims Settlement Act. Under summary of Major Provisions S.2829, Section 5 which states: The settlement also provides that the Passamaquoddy Tribe and the Penobscot Tribe will retain as reservations those lands and natural resources which were reserved to the in their treaties with Massachusettes and not subsequently transferred by them.

Under Public Law 96-420, Section 3, Definitions (b) “land or natural resources” means any real property or natural resources, including but without limitation, minerals and mineral rights, timber and timber rights, water and water rights, and hunting and fishing rights.”

Because tribes are the original owners of the land, courts have held that tribes keep the right to use the land unless they expressly give up that right. Tribes preserve all their rights to use the land until then. This doctrine is known as the “reserved rights doctrine”; it was first used by the Supreme Court in United States v. Winans, 198 US 371 (1905) where the Supreme Court held: “The treaty was not a grant of rights to the Indians, but a grant of rights from them – a reservation of those not granted.”

The “reserved rights doctrine” holds that tribes would retain all elements of their original Indian title until the tribes affirmatively act to give them up. A right cannot be lost through silence. Therefore, courts have concluded that tribal hunting and fishing rights are retained by a tribe even when treaties that grant other rights to the United States are silent on the issue of hunting and fishing. see Menominee Tribe v. United States, 391 US 404 (1968).

The protection promised to the tribes by the United States in treaties is twofold. First, the United States promises to defend a tribes reserved hunting and fishing rights in court. see United States v. Michigan, 471 Supp. 192 (W. D. Mich. 1974).

The second way the United States protects treaty rights is through the place of treaties in our system of constitutional law. Treaties are the supreme law of the land. “…all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, in anything in the Constitution or laws of any State to the contrary and notwithstanding.”

Therefore, state laws that conflict with treaty rights are invalid. Indian treaties preempt state law. see Missouri v. Holland, 252 US 416, 434 (1920); White Mountain Apache Tribe v. Brackee, 448 US 136 (1980).

Courts have fashioned certain rules of treaty construction which require that treaties be interpreted to fulfill their central purposes. Thus, treaties must be interpreted as the Indians would have understood them at the time they were made. see United States v. Winans, 198 US (1908).

Doubtful or ambiguous expressions are resolved in favor of the Indian parties. see Alaska Pacific Fisheries v. United States, 248 US 78 (1918). And, treaties must be construed liberally in favor of the Indians, see Tulee v. Washington, 315 US 681 (1942).

Finally, State regulation of the commercial activities of Indian tribes is allowed only if the state overcomes two independent but related barriers: a state may not act if its authority has been preempted by federal law or if its actions interfere with a tribes’ ability to exercise its sovereign functions. see Ramah Navajo Sch. Bd v. Bureau of Revenue, 458 US 833 (1982). For example, a state may not apply its general rules on hunting and fishing to either Indians or non-Indians on reservations, even if there is no specific federal preemption, since such state regulations are “incompatible with federal and tribal interests reflected in federal law and there is no state interest at stake sufficient to justify overriding tribal regulations.” see Antoine v. Washington, 420 US 194 (1975); Mescalero Apache Tribe v. Jones, 411 US 145 (1973); New Mexico v. Mescalero Apache Tribe, 462 US 324 (1983).

Therefore, the Indian Township Tribal Government believes that without a doubt that the right to fish unmolested or without hindrance as guaranteed by the Treaty of 1794 and affirmed by the Land Claims Settlement Act is still a aboriginal right that has never been relinquished.

Furthermore, this right is separate and distinct from any restriction of rights agreed to in the 1980 Land Claims Settlement.

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1794 Treaty Page

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