Native Treaty Rights

Massachusetts has long recognized the aboriginal rights of tribal citizens within the Commonwealth to hunt, fish, gather and trap for subsistence. Treaties, statutes, executive orders, and case law, both state and federal, comprise the framework that supports these rights.

• Treaties (most notably 1749)
• 1795 St., ch. 71, s. 5
• 1833 St., ch. 329, s. 50
• Executive Order No. 126
• Executive Order No. 637
• 1982 House Resolution Affirming Aboriginal Rights
• Commonwealth v. Maxim, 429 Mass. 287 (1999)
• Commonwealth v. Michael J. Maxim , 45 Mass. App. Ct. (1998)
• Greene v. Pacheco, Plymouth County, Superior Court of the Trial Court, Civil Action No. 2011-00355-B.
• United States v. Winans, 198 U.S. 371 (1905)

Supporting and Protecting Biodiversity

Indigenous peoples around the world, including Indigenous peoples in Massachusetts, comprise roughly 5% of the world’s population yet safeguard 85% of the world’s biodiversity. Indigenous land dispossession has resulted in deforestation, unsustainable resource extraction, introduction of invasive species, habitat destruction, and deer overpopulation. This ecological harm has created ecosystem imbalances that threaten indigenous ecosystems such as Inland Atlantic White Cedar Swamps. Based on the Indigenous ethic of “the honorable harvest,” aboriginal hunting and fishing rights are conducted within a covenant of reciprocity and relationality with the land and the water to prevent overuse. This principle acknowledges Indigenous traditions of kinship with and caring for the land, water and the more than human relatives that live there. The exercise of aboriginal hunting and fishing rights can help to restore ecological balance to fragile ecosystems.

• UN Environment Programme World Conservation Monitoring Centre (UNEP-WCMC)
• Effects of Land Dispossession and Forced Migration on Indigenous Peoples in the United States
• Reclaiming the Honorable Harvest: Robin Kimmerer at TEDxSitka

Liability

State and local governments have a responsibility to recognize and acknowledge the aboriginal hunting and fishing rights of tribal citizens. Local ordinances cannot prohibit hunting and fishing authorized by the Commonwealth, unless authorized by statute. The failure of state and local governments in MA to recognize, acknowledge and enforce aboriginal hunting and fishing rights can result in liability under the MA Tort Claims Act (negligent acts); MGL Chapter 131, Section 5c (intentional obstruction or interference with lawful taking of fish or wildlife); MA Civil Rights Act, and constitutional rights violations (4^th amendment and 42 USC 1983, a civil action for a deprivation of rights). Civil rights violations can arise from (1) unlawful detention of tribal citizens arrested or detained in the lawful exercise of their aboriginal rights to hunt or fish and (2) a failure to train which results in “deliberate indifference.” [See section on “Liability for a Failure to Train” under City of Canton, Ohio v. Harris (1978).]

Offsetting Liability:  Supporting Aboriginal Hunting and Fishing Rights and Tribal Sovereignty

American Indian tribes are sovereign nations. Their aboriginal rights to hunt and fish for sustenance, are based in their longstanding relationship to the lands on which they reside. These rights are inherent rights that are memorialized in treaties but not granted by them. They are based in the inherent sovereignty of tribal nations. Treaties highlight the one-to-one government to government relationship that exists between sovereigns.

Tribal citizens bear the burden of proving the lawful exercise of aboriginal hunting and fishing rights. Communities, however, can shift that burden away from tribal citizens and support tribal sovereignty through the implementation of best policies and practices. Communities should consider building relationships with tribal governments and Indigenous-led nonprofits that support the training and education of municipal staff, volunteers, and land stewards; working with the Environmental Police; and posting signage that educates the public regarding aboriginal hunting and fishing rights and the exception for tribal citizens to general prohibitions. Local ordinances that seek to limit aboriginal hunting and fishing rights must demonstrate a conservation necessity like state and federal endangered species acts and be nondiscriminatory to tribal citizens.