Mashpee Wampanoag Tribe Aboriginal Rights
Since time immemorial, the Mashpee Wampanoag have continuously exercised their hunting, fishing, trapping and gathering rights of what is now southeastern Massachusetts and eastern Rhode Island. Consistent with federal law, these rights are exercised both on- and offreservation
and have not been limited or abrogated by federal action or abandoned by the Mashpee Wampanoag. These aboriginal rights historically and now hold critical importance to the survival of the traditions, lifeways and culture of the Tribe. Accordingly, the Tribe will continue as it always has to protect and practice its aboriginal rights that are vital to the survival of the Mashpee Wampanoag community.
This page is intended to assist State and Federal officials, along with tribal citizens understand those Aboriginal Rights. What follows is a brief overview and downloadable print outs for tribal members to keep on hand when they are exercising their right to hunt, fish and trap.
What are aboriginal rights?
Aboriginal hunting, fishing, trapping and gathering rights arise from the immemorial custom and practice of Indian tribes. As the United States Supreme Court said in United States v. Winans:
The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed.
Tribes retain their aboriginal rights unless abrogated by treaty, abandoned or extinguished by statute. Since time immemorial, the Mashpee Wampanoag have been located in and have occupied, lived and died in, and survived on sustenance and other means from the land and natural resources of what is now southeastern Massachusetts and eastern Rhode Island. The Mashpee Wampanoag have zealously guarded their hunting, fishing, trapping and gathering rights, which rights have not been abrogated by federal action. Further, during this at least 12,000-year documented history, the Mashpee Wampanoag have acted as responsible stewards
of the land and its natural resources.
The Mashpee Wampanoag Tribe regulates Tribal member hunting, fishing and gathering rights through traditional and codified Tribal law. The Tribe, however, through its Tribal Council and Mashpee Wampanoag Natural Resources Commission (“NRC”) and Mashpee Wampanoag Tribal Natural Resources Department (“NRD”) is contemplating additional Tribal law to regulate the exercise of Tribal member hunting, fishing and gathering rights. The Tribal Council established the NRC to oversee all activity of the Tribe and its Departments related to the protection, restoration, or management of the Tribe’s natural resources and report and advise on such to the Tribal Council.4 The NRD is a department of the Tribe and its primary responsibility is to provide for the inventory, enforcement, protection, restoration, and management of the Tribe’s environmental and natural resources.
On-Reservation Aboriginal Rights
Indian tribes retain exclusive enjoyment of hunting, fishing and trapping on their reservation lands unless clearly relinquished by treaty or statute. The establishment of a reservation by treaty, statute or agreement includes an implied right of Indians to hunt and fish on that
reservation free of regulation by the state. The states do not have jurisdiction to regulate Indians in the practice of their aboriginal rights on their reservations unless federal treaty or statute clearly provides otherwise. This is supported by a federal statute that classifies it as a crime for any person to hunt, fish or trap without legal authority on “any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States.”9 10 In the case of the Mashpee Wampanoag Tribe, the Tribe’s reservation are lands held in trust by the United States11 and the exclusive right to hunt, fish or trap on these reservation lands has not been relinquished by treaty, statute or other federal action.
Off-Reservation Aboriginal Rights
Various federal court rulings throughout the country confirm that Indian tribes enjoy off-reservation aboriginal rights. Further, the scope of hunting, fishing and trapping rights derived from aboriginal possession continue to be exercisable just as other non-reservation rights are under treaties, statutes, agreements, or executive action unless clearly abrogated by Congress. These various federal court rulings lay out certain principles in regard to off-reservation hunting, fishing and trapping rights:
i. Indians cannot be prohibited from practicing their retained aboriginal rights in their usual and accustomed places.
In Winans, the Supreme Court found that the federal government had the authority to limit states from barring Indian tribes and their tribal members from exercising their aboriginal rights “at all usual and accustomed places.”
ii. Indians have an easement over lands to gain access to their usual and accustomed places.
Again, in Winans, the Supreme Court said that the enjoyment of Indian tribes to practice their aboriginal rights in their usual and accustomed places does not “restrain the state unreasonably, if at all, in the regulation of the right. It only fixes in the land such easements as enable the right to be exercised.”
iii. The right to fish, hunt and trap off-reservation is non-exclusive and may be shared with non-Indians.
Tribes have the right to exercise their aboriginal rights off-reservation but this right is non-exclusive. Meaning that, non-Indians may also be permitted by the states governments to hunt, fish and trap in these same areas.
iv. Indians are not required to purchase state licenses to practice their off-reservation aboriginal rights in furtherance of regulatory and/or revenue generating purposes
In Tulee v. State of Washington, the Supreme Court found that the State of Washington did not have lawful authority to charge a Yakima Tribe of Indians tribal member a licensure fee for fishing. In particular, the Supreme Court stated that the stated purpose of the fee was regulatory and meant to raise revenue for the State government and public institutions. In particular, the Court noted that “[w]e believe that such exaction of fees as a prerequisite to the enjoyment of fishing in the usual and accustomed places cannot be reconciled with a fair
construction of the treaty.”
