Off-Reservation Treaty Hunting Rights, the Restatement, and the Stevens Treaties

Abstract

The under-development of the law of off-reservation treaty hunting and gathering poses challenges for treatises like the groundbreaking Restatement of the Law of American Indians (“Restatement”). With particular attention to Sections 83 and 6 of the Restatement, this essay explores those challenges and offers some solutions for dealing with them in subsequent editions of the Restatement. Specifically, this essay explores the potential usefulness of historical law in interpreting treaties, the need to begin treaty interpretation with the language of the treaty when an explicit right is at issue, the proper application of the reserved rights doctrine and the canons, and how the canons should be applied in the face of conflicting tribal interests. Additionally, this piece celebrates the successes of Sections 83 and 6 of the Restatement and of the project of the Restatement in general.

Keywords: open and unclaimed lands, treaties, Indian treaties, treaty interpretation, canons of construction, treaty language, Restatement of the Law of American Indians, Restatement, off-reservation treaty rights, treaty hunting rights, treaty gathering rights, treaty fishing rights, historical law

JEL Classification: Q15, Q34