{"id":2896,"date":"2019-11-07T13:38:18","date_gmt":"2019-11-07T18:38:18","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/elr\/?p=2896"},"modified":"2023-07-25T15:57:27","modified_gmt":"2023-07-25T19:57:27","slug":"conservation-necessity-and-the-supreme-courts-historical-blunder","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/elr\/2019\/11\/07\/conservation-necessity-and-the-supreme-courts-historical-blunder\/","title":{"rendered":"Conservation Necessity and the Supreme Court\u2019s Historical Blunder"},"content":{"rendered":"

By Jesse Lempel*<\/a><\/sup>Jesse Lempel (HLS \u201819) is a law clerk to the Hon. William G. Young of the United States District Court for the District of Massachusetts.<\/span><\/em><\/p>\n

Last year, after selling about 4,000 endangered alligator eggs, Jack Turtle was prosecuted<\/a> by the federal government for violating Section 9(a)(1)(G) of the Endangered Species Act<\/a> (“ESA”). Turtle is a member of the Seminole Tribe of Florida, and he argued that the ESA did not apply to him because, in the Supreme Court\u2019s words<\/a>, “Indians enjoy exclusive treaty rights to hunt and fish on lands reserved to them.” But a federal court disagreed<\/a> with Turtle, instead following the government\u2019s theory of “conservation necessity<\/a>” that permits regulation of tribal hunting and fishing rights when necessary for conservation. Turtle later pleaded guilty.<\/p>\n

This raises a vexing question: Since treaties<\/a> between the United States and Indian tribes typically grant hunting and fishing rights to tribe-members, how can states\u2014or even the federal government\u2014limit those rights without violating the treaties? The Court\u2019s answer is the conservation necessity doctrine.<\/p>\n

This doctrine arises from a flagrant misreading of the historical record by the Supreme Court over a hundred years ago, in an opinion written by a Justice who was arguably distracted by his campaign for President. This post corrects that record, showing that this mythical version of history obscures a calculated policy of environmental aggression against Native tribes.<\/p>\n

The Supreme Court\u2019s first conservation necessity case was Kennedy v. Becker <\/em>(1916)<\/a>, in which New York prosecuted three Seneca tribe-members who speared fish in violation of state conservation law. The Court upheld the convictions, despite the Treaty of Big Tree in 1797<\/a> in which the Seneca retained<\/a> \u201cthe privilege of fishing and hunting\u201d on the lands they sold. The Court reasoned<\/a>:<\/p>\n

[I]t is idle to suppose that there was any actual anticipation at the time the treaty was made of the conditions now existing to which the legislation in question was addressed. \u00a0Adopted when game was plentiful\u2014when the cultivation contemplated by the whites was not expected to interfere with its abundance\u2014it can hardly be supposed that the thought of the Indians was concerned with the necessary exercise of inherent power under modern conditions for the preservation of wild life. But the existence of the sovereignty of the State was well understood. . . .<\/p><\/blockquote>\n

The Court assumed the abundance of natural resources at the time of the treaty negotiations. This assumption proved potent and became accepted fact over sixty years later when the Court repeated this refrain<\/a> in the context of state regulation of tribal fishing rights under a different treaty: “Because of the great abundance of fish and the limited population of the area, it simply was not contemplated that either party would interfere with the other\u2019s fishing rights.”<\/p>\n

In more sweeping fashion, the federal Department of Interior (“DOI”) relied on these two Supreme Court opinions to read an assumption of abundant resources into all<\/em> Indian treaties. Partly on that basis, in an M-Opinion (an official opinion that binds the agency) DOI invoked the conservation necessity doctrine to claim that federal<\/em> regulation of tribe members does not violate their treaty rights (M-36926, Nov. 4, 1980<\/a>). For example, DOI concluded<\/a> that “the Endangered Species Act is in complete harmony with the exercise of treaty hunting and fishing rights by Indians because those rights do not include the right to take endangered or threatened species.” This is the argument<\/a> that the federal government used to prosecute Jack Turtle.<\/p>\n

The only problem is that the history is wrong. And in Kennedy<\/em>, at least, the Court should have known better. Historical documents quoted in the appendix to a supplemental brief by Assistant Attorney General Charles Warren, later a Pulitzer Prize-winning legal historian, showed that the scarcity of game was a primary factor in inducing the Seneca to sell their land.<\/p>\n

For example, Warren attached<\/a> an August 30, 1797 speech by Thomas Morris\u2014the treaty\u2019s chief negotiator\u2014to the Seneca, which focused on the scarcity of game:<\/p>\n

You Brothers are in possession of a large tract of land which has been valuable to you only for the game which it contained. That game Brothers is fast diminishing and must soon cease to afford the same quantity of skins and food that you hitherto have derived from it, it therefore becomes necessary that you should provide yourselves with some more permanent method of acquiring your subsistence and clothing.<\/p><\/blockquote>\n

Additional historical documents support this version of events. In 1790, the Seneca expressed concern over disappearing game in a letter to George Washington<\/a>:<\/p>\n

Father, The Game which the great Spirit sent into our Country for us to eat, is going from among us: We thought he intended we should till the ground as the white people do, and we talked to one another about it. But before we speak to you of this, we must know from you, whether you mean to leave us, and our children, any land to till.<\/p><\/blockquote>\n

The loss of wildlife was known to white settlers; in fact, it was part of a sinister, deliberate strategy to dispossess Indians of land without going to war. In a 1783 letter to Congress<\/a>, Philip Schuyler, a revolutionary general and a commissioner of Indian affairs, outlined this plan:<\/p>\n

[A]s our settlements approach their country, they must from scarcity of game, which that approach will induce to, retire farther back, and dispose of their lands, unless they dwindle comparatively to nothing, as all savages have done, who gain their sustenance by the chase, when compelled to live in the vicinity of civilized people, and thus leave us the country without the expense of a purchase, trifling as that will probably be.<\/p><\/blockquote>\n

George Washington endorsed<\/a> Schuyler\u2019s strategy. And, at least with the Seneca, it appeared to work. By 1801, the Seneca Chiefs were again desperate to sell more land due to the lack of game. As Red Jacket, a prominent Seneca Chief, explained<\/a>:<\/p>\n

We finde ourselves in a situation which we believe our fore Fathers never thought of\u2014instead of finding our game at our doors we are obliged to go to a great distance for it, & then finde it but scarce compared to what it us\u2019d to be. The White people are seated so thick over the Country that the dear have almost fled from us, and we finde ourselves obliged to pursue some other mode of getting our living . . . .<\/p><\/blockquote>\n

At a minimum, it\u2019s clear that the premise underlying the Kennedy<\/em> decision\u2014that the negotiators of the Treaty of Big Tree assumed a world of everlasting plentiful resources\u2014is false. Both the Seneca and the white men negotiating the Treaty of Big Tree in 1797 contemplated the demise of wildlife that sustained the native population\u2014in fact, that was a central motivation for the treaty. The Court got it backwards in describing the treaty as “[a]dopted when game was plentiful.”<\/p>\n

How did this factual blunder, contradicted by available documents, make it into the Court\u2019s opinion? One possibility is that the opinion\u2019s author was simply distracted. Justice Charles Evans Hughes, the author of Kennedy<\/em>, left the Court two days before the opinion was issued to run for President in the 1916 election as the Republican nominee. The two months between the submission of the brief in April 1916 and Hughes\u2019s nomination for President and resignation from the Court were very hectic, and Hughes did not have a law clerk, as discussed in his autobiographical notes. Justice Hughes may not have read the 80-page appendix to Charles Warren\u2019s supplemental brief. Yet his erroneous history is still good law.<\/p>\n

This historical error has legal implications. A historically accurate account of the context surrounding these treaties would answer one of the major questions surrounding the conservation necessity doctrine, one directly implicated by the prosecution of Jack Turtle: can the federal government<\/em> invoke the conservation necessity doctrine to limit tribal rights that conflict with federal conservation regulations, or is the doctrine available only to the states? The federal government\u2014both the Department of Justice<\/a> and the Department of the Interior<\/a>\u2014takes the position that federal conservation law restricts tribal treaty rights, even when the treaties are not abrogated, and this view has been adopted by the Ninth Circuit<\/a>. That\u2019s how Jack Turtle wound up in trouble for violating the federal<\/em> ESA.<\/p>\n

The Supreme Court has never embraced this doctrinal expansion, however, and the historical record decisively undercuts it. The facts make it untenable to explain the conservation necessity doctrine by reading a general conservation-exception clause into the treaties, based on the federal government\u2019s faulty premise<\/a> that the “various Indian tribes . . . did not even contemplate whether this right extended to the taking of a species which was on the brink of extinction.” If the doctrine is to survive, another basis must be found.<\/p>\n

A promising alternative justification is, as the Court has more recently implied<\/a>, that tribal exploitation of resources is constrained by “a State\u2019s sovereignty over the natural resources in the State.” But if that\u2019s so, several factors limit the doctrine to regulation by the states<\/em>. First, states traditionally enjoy greater sovereign interests in protecting their natural resources<\/a> and wildlife<\/a> than does the federal government. \u00a0Second, the affront to federal sovereignty from tribal treaty rights is minimal, since federal treaties themselves recognize these rights. And to the extent that national sovereignty is implicated by tribal hunting and fishing, the federal government does not need a judicially created doctrine to resolve the conflict\u2014Congress can simply abrogate any treaty if it so desires. Accordingly, if conservation necessity rests on sovereign powers rather than historical limitations of the treaties, the federal government has no business invoking the doctrine. On this view, Jack Turtle could not have been convicted.<\/p>\n

At bottom, though, regardless of the legal implications, correcting the assumptions undergirding the law of conservation necessity matters because the official version of history disguises the repugnancy of the past. Decades ago, a landmark opinion by a federal judge famously blasted the conservation necessity rule as, among other things, “highly obnoxious to the Indians<\/a>.” When we confront the truth of how native peoples were stripped of their lands and resources, obnoxious seems a kind word.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

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