Individual Aboriginal Rights

This Article will, in Section I, deal with the legal development of the concept of individual aboriginal rights. It will focus on the Western Shoshone land claims before the Indian Claims Commission, and the federal government\u27s trespass claims against the ranching operations of the redoubtable, irrepressible Dann sisters. Section II will explore the development and utilization of the doctrine of individual aboriginal rights in a series of cases involving the Dann sisters, subsequent Western Shoshone, and other efforts by native people to secure subsistence hunting and fishing rights and possession of or access to sacred sites. Section III will explore some related concepts in western public land law. This Section suggests that custom, prescription, access under nineteenth century self-executing right of way statutes, regulatory efforts, and administrative accommodation have provided at least some protection for the access of tribal peoples to sacred sites. Section IV will speculate about the future expansion of such efforts, and explore the possibility that the growth of colorblind equal protection doctrine will spread into the area of Indian law and threaten what Charles Wilkinson has called the measured separatism of tribal sovereignty and property