The Use of Historical Law in Treaty Rights Cases

Authors

Ann Tweedy, University of South Dakota School of LawFollow

Document Type

Article

Publication Date

March 2019

Keywords

treaty rights, common law, historical law, canons of construction, environment, hunting rights, fishing rights, culverts, United States v. Washington, legal history, Herrera v. Wyoming, Herrera, Crow Tribe, Boldt decision, tribal advocacy, litigation strategy, environmental law

Disciplines

Courts | Cultural Heritage Law | Indigenous, Indian, and Aboriginal Law | Legal History | Natural Resources Law | Social and Cultural Anthropology

Abstract

This paper examines the potential contributions of historical law to treaty rights cases, looking specifically to the use of such law in the Culverts Case and in a currently pending tribal hunting case, Herrera v. Wyoming. It demonstrates the benefits that historical law can confer on tribal clients, while also discussing some of the reasons that tribal clients may be reluctant to invoke it. It concludes that, at a minimum, lawyers representing tribes in treaty rights cases should research the laws that existed at the time that the treaty was entered into and should consider developing expert testimony on such laws.

Publication Title

ABA Section of Environment, Energy & Resources 37th Water Law Conference materials

Recommended Citation

Tweedy, Ann, "The Use of Historical Law in Treaty Rights Cases" (2019). Faculty Publications. 849.
https://red.library.usd.edu/law-fp/849