reserved rights

What happened

A reserved right is a right a tribe kept when it ceded land or agreed to a reservation. United States v. Winans (1905) concerned the Yakama treaty, signed in 1855 and ratified in 1859. The treaty ceded land but secured the right of taking fish "at all usual and accustomed places, in common with citizens of the territory." The Court wrote that "the treaty was not a grant of rights to the Indians, but a grant of right from them,—a reservation of those not granted."

Minnesota v. Mille Lacs Band (1999) applied the idea to an 1837 treaty in which the United States guaranteed Chippewa hunting, fishing and gathering rights on ceded land. Minnesota argued the rights ended through an 1850 executive order, an 1855 treaty and Minnesota's 1858 statehood. The Court concluded "that the Chippewa retain the usufructuary rights guaranteed to them under the 1837 Treaty."

Herrera v. Wyoming (2019) reached the same result for a Crow Tribe hunting right under an 1868 treaty. The Court held that "Wyoming's admission into the Union did not abrogate the Crow Tribe's off-reservation treaty hunting right."

Menominee Tribe v. United States (1968) shows reserved rights surviving even termination: the Court held the hunting and fishing rights preserved by the Treaty of Wolf River "survived the Termination Act of 1954." Rights may still end if Congress clearly abrogates them.

Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error