226
Thomas, J., dissenting
The 1837 Treaty at issue here did not reserve "the right of taking fish at all usual and accustomed places, in common with citizens of the Territory" like those involved in Tulee and Puyallup Tribe. Rather, it provided:
"The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States." 1837 Treaty with the Chippewa, 7 Stat. 537 (emphasis added).
This language more closely resembles the language of the Big Tree Treaty at issue in Kennedy. Although Minnesota's regulatory authority is not at issue here, in the appropriate case we must explain whether reserved treaty privileges limit States' ability to regulate Indians' off-reservation usufructuary activities in the same way as a treaty reserving rights.3 This is especially true with respect to the privileges reserved by the Chippewa in the 1837 Treaty, which, as The Chief Justice explains, ante, at 219-220 (dissenting opinion), were clearly of a temporary and precarious nature.
that the Treaties at issue in Puyallup Tribe and Tulee provided express federal law to the contrary, while the Treaty in Kennedy did not.
3 Various representatives of the United States have previously taken the position that treaty rights are "more substantial vested rights than treaty reserved privileges." Holt, Can Indians Hunt in National Parks?, 16 Envtl. L. 207, 236-238 (1986) (citing letters from the Department of Agriculture, Department of the Interior, and the Department of Justice to that effect).
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