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13 Pub. Land L. Rev. 179 (1992)
Honoring Treaty Rights and Conserving Endangered Species after United States v. Dion

handle is hein.journals/publan13 and id is 185 raw text is: HONORING TREATY RIGHTS AND CONSERVING ENDANGERED SPECIES AFTER UNITED STATES v. DION Sally J. Johnson' Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere, and our treatment of Indians, even more than our treatment of other minorities, reflects the rise and fall in our democratic faith. 2 I. INTRODUCTION In United States v Dion' the Supreme Court expressly sidestepped the issue of whether the Endangered Species Act' abrogates Indian treaty rights to hunt and fish on reservation lands.5 Six years later, the question raised in Dion remains unanswered by the Supreme Court. As framed, the issue forces a conflict between honoring treaty rights and -conserving endangered and threatened species. The purpose of this note is to predict the Supreme Court's eventual resolution of the dispute as framed, and propose an alternative solution which honors treaty rights and conserves endangered species. II. BACKGROUND A. Indian Treaty Rights to Hunt and Fish Although all Indian treaties were executed over 100 years ago6, unless otherwise modified, these treaties remain in effect.7 Indian treaties often fix geographic boundaries, define tribal rights on and off reservation lands, and detail issues of tribal sovereignty 8 A treaty is not a grant of rights to the Indians, but a grant of rights I. B.A. 1978, University of Montana; M.A. 1981, Northwestern University; J.D. Candidate, University of Montana School of Law. The American Bar Association's section on Natural Resources, Energy, and Environmental Law awarded this paper second place in its 1992 writing contest. The author is indebted to Prof. Margery H. Brown, John B. Carter, and Grant D. Parker for guidance and suggestions. They are, of course, not responsible for this interpretation. 2. FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW at v, (1982 ed.). 3. 476 U.S. 734 (1986). 4. 16 U.S.C. §§ 1531-1544 (1988). 5. Dion, 476 U.S. at 745. 6. In 1871, Congress enacted legislation halting treaty making with Indian tribes. Act of Mar. 3, 1871, ch. 120, § 1, 16 Stat. 544 (codified as carried forward at 25 U.S.C. § 71 (1988)). The statute called for a continuation of existing treaties. F Cohen, supra note 2, at 62. 7. Tsosie v. United States, 825 F.2d 393 (Fed. Cir. 1987). 8. F COHEN, supra note 2, at 62-70.