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.

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