69
largely through treaty-making.
198
In these treaties, Tribes typically ceded rights, title, and interest in
their aboriginal lands to the United States while retaining—or reserving—certain rights. The United
States Supreme Court, in interpreting the scope of reserved fishing rights, affirmed the principle that
Tribes’ reserved rights are “not a grant of rights to the Indians, but a grant of rights from them – a
reservation of those not granted.”
199
As the Forest County Potawatomi Community commented:
The [Forest County Potawatomi Community] and Tribal nations generally, are place
based and cannot relocate. The very nature of treaty rights, and a line of cases
reinforcing treaty rights, makes clear that those rights are continuous, and the federal
government is responsible for ensuring the sustainability of those rights, including
hunting, fishing, clean water and environmental availability.
200
Tribal Nations retain significant legal rights to determine whether, and if so, how, to develop minerals
on reservation and Tribal fee land.
201
Those same Tribes, however, have far fewer legal rights or tools
with respect to ceded lands that are located outside of their reservation borders. Some Tribes, like
those of the Pacific Northwest and Great Lakes regions, retain an explicit treaty-based right to hunt
and fish on lands beyond reservation boundaries,
202
which, under certain circumstances, could impact
the permitting of mining facilities that have the potential to impact access to treaty-reserved resources
or the treaty-reserved resources themselves.
When a Federal agency is engaging in regulatory or other decision-making processes, the agency
engages, through consultation, with Tribal governments to determine whether Tribal treaty or
reserved rights may be impacted by the proposed Federal action.
203
In consultation, agencies are
expected to carefully consider Tribal views on the nature and scope of the treaty and reserved rights,
consider Tribal views on the likelihood and level of impact on those rights by the proposed agency
action, and determine how to best incorporate Tribal rights consistent with applicable law. Further,
with the Memorandum of Understanding Regarding Interagency Coordination and Collaboration for
the Protection of Tribal Treaty and Reserved Rights, Federal agencies affirmed their commitment to
198
After 1871, other forms of Federal government decision-making continued to be utilized by the various branches of
government to recognize Tribal rights, including, but not limited to: executive orders, military decrees, federal legislation,
and judicial decisions.
199
United States v. Winans, 198 U.S. 371, 381 (1905); see also, Winters v. United States, 207 U.S. 564, 577 (1908) (holding
that Tribes retained the right to access and use surface water even if not expressly reserved in the applicable treaty
between the Tribe and the United States).
200
Forest County Potawatomi Community Response to Request for Information to inform Interagency Working Group
on Mining Regulations, Laws, and Permitting. 2022.
201
See, e.g., 25 U.S.C. § 396a; United States v. Shoshone Tribe of Indians, 304 U.S. 111 (1938).
202
Cohen’s Handbook of Federal Indian Law § 18.04, Nell Jessup Newton ed. (2017).
203
Advisory Council on Historic Preservation, “Tribal Treaty Rights in the Section 106 Process,” 2018.
https://www.achp.gov/sites/default/files/whitepapers/2018-09/TribalTreatyRightsintheSection106Process20180920.pdf.