Culture or Contract: Off-Reservation Indigenous Commercial Logging in Wisconsin and the Maritimes

Abstract

<p>This article compares American and Canadian case law on Indigenous claims to treaty protected logging. It argues that the recent 2005 R. v. Marshall decision, like the earlier American decision in Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, applies an assumption that tribal treaty negotiators were uninterested in reserving any treaty rights other than those denominated "traditional" by the court. It examines this assumption through a discussion of the logical evolution of treaty protected rights and the moderate-living doctrines. For the most part the imposition of the assumption precludes Indigenous commercial exploitation under treaty jurisprudence while undermining other judicial interpretive methodologies that are more protective of tribal interests.</p>