Indigenous rights in the United States and Canada

Tribal attorney Mason Morisset gave a history of the U.S. court decisions that reaffirmed treaty rights for tribes in western Washington.

The tribes signed treaties with the U.S. government in the 1850s. Fishing rights were reaffirmed by the Boldt decision in 1974. Shellfish rights were reaffirmed by the Rafeedie decision in 1994.

Hunting and gathering rights haven’t been adjudicated yet.

The treaties include language reserving the right to hunt and gather on open and unclaimed land. The state has refused to recognize treaty hunting or gathering on anything they can label as private land, which includes a huge amount of forestland.

“Until we have a legal ruling, it’s going to be very difficult to establish hunting rights in any way,” he said.

  • What is needed for effective co-management? A court order helps.

The agreements mentioned earlier by Tom Laurie of the Department of Ecology would not exist without a court order. “There has to be some legal power and it has to be enforceable,” Morisset said.

The Centennial Accord is worthless, as a legal matter, he added. “There’s nothing to enforce.You can’t sue on it. Tribes do use it to continue a dialogue, but you need a legal document that gives you rights.”

Also needed:

  • Tribal leadership that is committed to investment of time and effort by themselves and staff. “You can’t just get up there and make speeches.”
  • Staff trained in biology, management, environmental science, etc.
  • Intertribal groups, such as the Northwest Indian Fisheries Commission and Coast Salish Gathering, to provide expertise and coordination.

First nations attorney David Joe summarized aboriginal rights and title in Canada.

  • 1763 – The King issued a royal proclamation, reserving land for Indians as hunting grounds.
  • 1867 – Canada was created. Indians and lands reserved for Indians were vested with Canada. Provinces could infringe on aboriginal rights and title, but could not extinguish them.
  • 1876 – Indian Act (still the predominant statute) – Established federal jurisdiction over “status Indians,” governing most aspects of their lives. Defined who is an Indian and regulated band membership and government, taxation, lands and resources, money management, wills and estates, and education.
  • From 1884-1960 – Canada passed various acts of assimilation that denied the first nations the rights to have a potlatch economy, legal counsel or vote (until 1960). Residential schools were established.

“Canada caught up to the United States in 1982, but not through the good will of Canada,” he said. First nations, Metis and Inuit lobbied to be included in the new constitution. It recognized and affirmed aboriginal treaty rights, stated that lands claims rights are treaty rights, and guaranteed protection of that right.

Among the legal cases dealing with aboriginal rights:

  • Guerin case of 1984 – Ruled that there is a fiduciary duty of the crown to aboriginal people.
  • Sparrow case of 1990 – The crown must justify infringements of existing aboriginal title and rights.
  • Vanderpeet case of 1996 – Aboriginal rights do not extend to commercial sale of fish.

Chief Ken Malloway of the Sto:lo Nation noted that the Boldt decision is a legal battle between the United States – on behalf of the tribes – and Washington state.

“Canada has never gone to court for the first nations, only against us,” he said. “Every time we’ve been to court, we’re fighting Canada. We never had Canada on our side before, even though the Guerin case says they have a fiduciary obligation.”

Many first nations people don’t consider themselves Canadian, he added. “Not the way I’ve been treated in my country. I’m Sto:lo Nation.”

Randy Kinley, Lummi Nation, said that although treaties are supposed to be the “supreme law of the land,” the U.S. government frequently interferes with treaty rights through the Endangered Species and Marine Mammals acts, among others.

“All of this is whittling away at our treaty rights,” he said. “I hope we walk away from this with a political strategy,” he said.

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