State Regulation and Enforcing Usufructuary Treaty Rights

Despite the hard-fought community-led political and legal battles that led to the recognition and exercise of treaty-guaranteed hunting, fishing, and gathering rights for tribes, these rights remain under threat. Developmental pressures on habitat, climatic change that adversely effects flora and fauna, an increasingly conservative judiciary, and legal legerdemain by treaty right opponents— all have forced tribes to remain vigilant. In order to counter these threats both on and off their reservations, tribes have sought to protect their interests with less traditional legal arguments grounded in tribal property interests, historic and heritage preservation, religious claims, and tort claims. In this chapter, I consider some possible protective approaches to off-reservation hunting, fishing, and gathering rights.