What is a Treaty?
A treaty is a mechanism used by the
United States government to give its word to
another government, and that word is not eroded
by the passage of time.
Accurate treaty interpretation is a sophisticated and complex legal issue. The body of treaty
law is vast, and continues to grow. Federal court
involvement is often required to interpret treaties.
The courts provide a thorough and well-
researched legal interpretation, which serves as a
foundation for common understanding of
reserved treaty rights. This foundation promotes
public understanding and acceptance of reserved
rights.
How Treaties between the U.S. and
Indian tribes came about
Before the arrival of non-Indian people to
North America, the landmass of the continent was
completely controlled by native tribal entities.
Tribes had all the rights of ownership, including
the right to use the land and water resources as
they desired.
Following European arrival, new settlements were established. These settlements need-
ed land and its resources. Sometimes lands were
obtained through warfare, but more often by
negotiation or purchase. Treaties were the legal
documents used to settle wars or to record the
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details of negotiation or purchase. Treaties were
developed between tribal government and the
government of the United States. Land conveyed
by tribes in treaties is called "ceded land."
Prior to 1808, tribal groups in Michigan
inhabited most of the 57,000 square miles that
comprise the state. By 1864,tribal lands amounted to only 32 square miles of Michigan, the rest
ceded in treaties with the United States government.
Before European occupation, tribes had
complete sovereign power over their territory. In
many cases, tribes retained some rights of ownership when treaties were negotiated. While
tribes might exchange a territory for peaceful
relationships, money or other considerations, they
might decide to retain certain areas for tribal use, or to retain the right to continue some tribal activities on the ceded land. Fishing or hunting on
ceded territory was a right of ownership retained
by the tribes, not given up in treaty provisions.
The Nature of Treaty Rights
Treaty rights pertaining to hunting and fishing are very similar to contemporary property
rights. Retaining certain rights when land is sold
is a common practice in today's land sales. A
property owner might decide to sell land, but
retain some property right such as an easement
or sub-surface mineral rights.
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The Canons of Construction:
Interpreting Treaty Language
Interpretation of treaty language can be
difficult even for skilled attorneys and judges.
The United States Supreme Court eventually
developed "The Canons of Construction," a set
of rules to be used by all courts in the United
States when dealing with treaty interpretation
issues. The two main points are that treaties are
to be interpreted as the Indian participants
understood them at the time negotiated; and
ambiguities (unclear language)in interpreting
treaty language are to be resolved in favor of
the Indians.
The federal government negotiated hundreds of treaties with tribes all around the coun-
try between 1787 and 1871.Courts use historians, linguists, and other experts in attempting to
understand what treaty language written during
that time period means. For example, letters
written by Henry Schoolcraft,who helped negotiate the 1836 treaty,were examined in United
States v. State of Michigan. Expert testimony
helped the court understand Schoolcraft's explanation of Article Thirteenth to the Indians and
how Indians may have understood it.
U.S. District Judge Noel Fox determined
that the canons of treaty construction should be
"adhered to rigorously." He wrote, "This court
adopts the meaning of the 1836 treaty consistent with the canons of construction. Under the
1836 treaty of cession,the Indians granted a
large tract of land and water area to the United
States. At the same time they reserved the right
to fish in the ceded waters of the Great Lakes.
"Because of the documented evidence
demonstrating that the Indians were absolutely
dependent upon fishing for subsistence and
their livelihood, and reading the treaty as the
Indians would have understood it, they would
not have relinquished their right to fish in the
ceded waters of the Great Lakes. Since the
treaty does not contain language granting away
the prior right to fish, that right remains with the
Indians and was confirmed by the 1836 treaty."
(United States v.State of Michigan V.
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Conclusions of the Law B. Canons of Treaty
Construction [26 ].)
The 1836 Treaty
After a series of court cases, both the
Michigan State Supreme Court and the federal
courts affirmed that the 1836 treaty reserved the
right to fish under tribal authority in treaty ceded
Great Lakes waters.
Treaty language from the 1830s and
1840s regarding these rights can seem difficult
to interpret in today's terms. A section of the
1836 Treaty of Washington, has the following
language:
Article thirteenth. The Indians stipulate for
the right of hunting on the lands ceded, with the
other usual privileges of occupancy, until the
land is required for settlement.
U.S. District Judge Noel Fox discussed
"Article Thirteenth" in the court case United
States v. State of Michigan.
"The language contained in Article
Thirteenth of the Treaty of 1836, by its own
terms could not have limited the Indians 'right to
fish in the waters of the Great Lakes because
these large bodies of water could not possibly
be settled by homes, barns and tilled fields.
While the Indians might have been willing to
give up their right to hunt on various parcels of
land as that land became occupied with settlers,
the vital right to fish in the Great Lakes was
something that the Indians understood would
not be taken from them and, indeed, there was
no need to do so ..."(United States v. State of
Michigan V. Conclusions of the Law B. Canons
of Treaty Construction [27 ].)
In People v. LeBlanc, the Michigan
Supreme Court came to the same conclusion as
Judge Fox : "...the ceded water areas of the
Great Lakes have obviously not been required
for settlement, and therefore the fishing rights
reserved by the Chippewas in these areas have
not been terminated." (People v. LeBlanc,
supra, 248 N. W. 2d at 207.)
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