The Use of Historical Law in Treaty Rights Cases

Ann Tweedy, University of South Dakota School of Law

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.