3.1.1  English Common Law

English common law began with the Magna Carta, first confirmed into law in 1225, as part of the centralizing of powers of the King during the middle ages after the Norman conquest. An important component of that document is the declaration of certain individual liberties, including the writ of habeas corpus, which prohibits a freeman being imprisoned or punished without the judgment of his peers. The common law coexisted with the civil law in England until the 17th century, when Parliament established a permanent check on the power of the English king and claimed the right to define the common law itself. That movement toward codification of the common law led to the writing of a key treatise on English common law, William Blackstone's Commentaries on the Laws of England, which still functions in American law as the definitive source for common law precedents prior to the existence of the United States.

The common law is a body of general rules prescribing social conduct enforced and applied by the court system. It evolves to meet changing social needs and improved understanding. The common law develops its principles from the grounds of decision in actual legal controversies. It is marked by its extensive use of the jury to provide the court with facts necessary for deciding a case. It is also marked by a doctrine of the supremacy of law (Hogue 1966).

Treatise writers and historians of the common law have long given custom a prominent place among the sources of this body of general rules. Maitland and Montague (1915) traced the evolution from customs originating in the “common wisdom and experience of society,” through the stage of becoming “established customs,” to the point at which they receive “judicial sanction in courts of last resort” (Hogue 1966).

Blackstone (1783) stated: “This unwritten, or common law, is properly distinguishable into three kinds: 1) General customs, which are the universal rule of the whole kingdom, and form the common law, in its stricter and more usual signification; 2) Particular customs, which for the most part, affect only the inhabitants of particular districts; and 3) Certain particular Laws, which, by custom, are adopted and used by some particular courts, of pretty general and extensive jurisdiction. All these are doctrines that are not set down in any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common law, for their support.”

At common law, possession is the root of all titles to land. A title rooted in possession entitles the possessor to an interest in the land. The kind of interest acquired depends on the nature of the interest available for acquisition at the time possession was taken. An interest acquired by possession, however, is not limited to the uses relied upon to establish the possession.

3.1.2  Roman Civil Law

Roman civil law is best illustrated by the Roman Civil Code known as the Institutes of Justinian, prepared under the direction of Emperor Justinian in 529 AD. That document serves as the root of today's civil law, including many of today's procedures for determining water boundaries. The following translations (Sandars 1874) of pertinent excerpts from that code illustrate the detail and the similarity of that code to modern water law.

As may be seen, the Roman code addresses many of the same issues relating to the ownership and boundaries of water bodies pertinent in today's society, including issues such as public ownership of navigable waters, the location of the boundary between publicly owned waters and privately owned littoral or riparian land, public access to navigable waters, riparian rights to newly formed lands, and ownership of newly formed islands (Robillard and Wilson 2014). Application of the Roman law to U.S. law regarding water boundaries is discussed more thoroughly in Section 7.3 of this book.

In addition to issues relating to water boundaries, the Roman civil code also addressed a wide range of issues relating to civil rights. These include ownership of property, familial relationships, inheritance rights, etc.

3.1.3  Spanish Civil Law

Most of the Spanish law influencing property rights in the United States today is derived from an early codification of civil law related to the Roman Institutes of Justinian. That collection of early Spanish law, entitled Las Siete Partidas, is a Castilian statutory code compiled in the 13th century during the reign of Alfonso X of Castile. As with the Roman Institutes of Justinian, Las Siete Partidas addressed a wide range of issues relating to civil rights. As implied by the title (Siete Partidas), this code is divided into seven parts, addressing various broad topics including natural law, public and military law, judicial organization, domestic relations, contracts, and criminal law. Several of the sections appear to have been based on the Roman Institutes of Justinian. The Spanish code is remarkably comprehensive, even covering topics such as who has the authority to hear confessions or perform baptisms and rules for tithing.

As an outpost of the kingdom of New Spain, the province of Texas shared with Mexico the aforementioned law of the parent sovereign, that of Castile. This law remained essentially unchanged during Mexican Texas, which spanned the years 1821 to 1836. After the Texas Revolution, the Republic of Texas adopted the law of England. One of the exceptions was the law affecting land titles and certain water rights. Some of the elements of the Spanish legal system worked very well, and settlers were comfortable with it, since it was less complicated than English procedure. However, after the Civil War came an influx of common law lawyers and teachers trained in the Anglo-American system.

As a result of the continued application of the Spanish doctrine to land grants made before the Act of 1840, and those made thereafter, results in different rules may apply to adjacent tracts depending on the origin of the grant. For example, along the seashore, where the shore is flat, a common law grant may extend farther toward the ocean than an adjacent Spanish law grant due to the different system of measuring the coastal boundary. There is also a difference with regard to grants along rivers. Grants made under Hispanic rules extend only to the bank of a navigable waterway, as the sovereign was the owner of the bed of the river. Later common law grants extend to the center of a navigable waterway. The law for Spanish grants is also more restrictive regarding rights of irrigation, as Spanish grants do not contain such rights unless specifically granted.

Spanish law and its influence may also be found in the states of Arizona, New Mexico, California, and in southern Colorado, all of which were part of the Spanish territory, overseen and governed by the Spanish and Mexican governments. Land grants were made under those systems, establishing original grant boundaries, as well as influencing later subdivisions after the areas became part of the United States and the several states.

As with the Roman Institutes of Justinian, the primary impact of Las Siete Partidas on contemporary property rights in the United States is in dealing with the ownership and boundaries of waters. Translations of portions of the code addressing the boundary of the public owned coastal waters are as follows (Scott 1931):

The things which belong in common to the creatures of this world are the following, namely; their, the rain-water, and the sea and its shores, for every living creature can use each of these things, according as it has need of them. For this reason every man can use the sea and its shore for fishing or for navigation, and for doing everything there which he thinks may be to his advantage.

…and all that ground is designated the shore of the sea which is covered with the water of the later at high tide during the whole year, whether in winter or in summer.

Thus, the Spanish Civil Law appears to continue to call for both the sea and the seashore to be publicly owned. Yet, it appears to depart from the Roman Civil Law in that it calls for the consideration of the tidal cycles as opposed to seasonal high waters as with the Roman code. See Section 6.3 of this book for a complete discussion of this topic.

3.1.4  French Civil Law

Louisiana private law is primarily a Napoleonic system and is the only U.S. state partially based on French and Spanish codes and, ultimately, Roman law. In Louisiana, private law was codified into the Louisiana Civil Code; however, the law has considerably merged with American law, especially in the public law and in the judicial system. In fact, any innovation, whether private or public, has been decidedly common law in origin.

French civil law is based on the Napoleonic Code of 1804, named after the emperor. That Code consists of three sections: the law of persons, property law, and commercial law. Rather than a collection of statutes or listing of case law, that code sets out general principles as rules of law. Sections of the French Civil Law, including laws regarding property, contacting, and business entities, were strongly influenced by the Roman Civil Law.

The influence of the French Civil Law is especially noticeable in the state of Louisiana. Actually, the first Louisiana Civil Code Digest of 1808 was written in French, although then translated into English. Therefore, significant differences exist between Louisianan civil law and the common law found in most other American states. Nevertheless, Louisiana law does have many of the terms and concepts unique to American law, including forced heirship, redhibition, and lesion beyond moiety.

In Quebec, whose private law is also primarily of French civilian origin, development has been along the same lines, having adapted in the same way as Louisiana to the public law and judicial system of Canadian common law. By contrast, Quebec private law has innovated mainly from civilian sources. To a lesser extent, other states formerly part of the Spanish Empire, such as Texas and California, have also retained aspects of Spanish civil law into their legal system, for example, community property. The legal system of Puerto Rico exhibits the same inclinations that Louisiana has shown, that is, the application of a civil code whose interpretations rely on both the civil and common law systems. Because Puerto Rico's Civil Code is based on the Spanish Civil Code of 1889, available jurisprudence has tended to rely on common law innovations due to the code's age and, in many cases, obsolete nature.

While the French settled in several areas, including Maine, northern New Hampshire and Vermont, Michigan, Ohio, and especially along the Mississippi River, French law did not develop fully, nor was it widely applied. The French influence did, however, affect the establishment of titles and their boundaries and therefore had an impact on tenure.

In Massachusetts, the Supreme Court adopted from the French Civil Code the rule as to riparian rights, which is now found throughout the common law world. Ohio took over from the civil law its doctrine as to cases regarding agency relationships.

3.1.5  Russian Civil Law

Russian America was the name of the Russian colonial possessions in the Americas from 1733 to 1867. Several settlements crossed parts of what are now the U.S. states of California, Alaska, and two ports in Hawaii. Formal incorporation of the possessions by Russia did not take place until the Ukase of 1799, which established a monopoly for the Russian-American Company and also granted the Russian Orthodox Church certain rights in the new possessions. Many of its possessions were abandoned in the 19th century. In 1867, Russia sold its last remaining possessions to the United States.

With grants, the chief administrator of the Russian-American Company would assign a plot of land for housekeeping and fishing, taking special care only “to avoid contestations between the settlers and the natives.” These assignments were not accompanied by any written titles or other legal documents. Rather, “the first occupation and using of a certain locality, whether by an individual or by a community, notwithstanding the lack of formalities, conferred unquestionable right of possession.” No one, not the Russians nor the Alaska natives, had anything more according to Russian law.

The provisions of Russia's 1844 Charter remained in force until the time of cession to the United States in 1867. They constituted a part of the laws in force in the territory subsequently acquired by the United States and are therefore subject to judicial notice by the American courts. The opinion of Judge Wickersham in United States v. Berrigan, 2 Alaska 446, states as follows:

Where territory has been acquired by the United States from a foreign power, its courts will take judicial notice of the laws which prevailed there up to the time of such acquisition. They are not, as to such acquired territories, foreign laws, but laws of an antecedent government. (United States v. Perot, 98 U.S. 428, 25 L. ed. 251; Fremont v. United States, 17 How. (U.S.) 542, 15 L. ed. 241)

3.1.6  Dutch Civil Law

The first constitution of New York in 1777 prohibited interference by the state with “any grants of land within the state, made by the authority of the king or his predecessors prior to 1775.” Therefore, the quality and extent of “any grants of land within the state made by the authority of said king” must be determined by the rules of law that operated upon the grant at the time the grant was made and title passed under it (N.Y. Const. of 1777, § 36).

Prior to the English taking over what is now Pennsylvania and the Delaware, the Swedes and the Dutch each in turn set up a government. Considered under Dutch rule, the first period extended from 1609 to 1638; the Swedish rule extended from 1638 to 1655; and the Dutch rule, the second period, extended from 1655 to 1664. The Swedish settlement was governed solely under Swedish law, but when the Dutch gained control of the Delaware, this was placed under the authority of the director and council of New Amsterdam. The Dutch organized local governments and set up courts, which seem to have been required to oversee only rather trivial matters.

For a time after authority was transferred, the Delaware lands were allowed to maintain the authority of their Dutch courts, but in 1676, the district was called upon to enforce the code of laws adopted in 1664 at Hemsted on Long Island. This is known as the Book of Laws of the Duke of York. The preamble to this code states that the measures contained within it were “Collected out of the several laws now in force in his Majesties American Colonyes and Plantations.” But it was the laws of Massachusetts and New Haven especially that influence Gov. Nicholls and his associates in the preparation of the code of 1664.

With the coming of William Penn, a new era began in the legal system in that region. Out of his own bitter experiences with the English law came certain conceptions of justice that he hoped would be adopted in the new world. While still in England, he had drawn up a fundamental body of laws, and the Great Law of Chester adopted in 1682 contained these juristic ideals.

The Quakers showed great reluctance in the earlier period to applying the harsh sanctions set up by the mother country and so occupied themselves with law making and otherwise set themselves against the application of the laws of Great Britain, declaring through their superior court that English statute law could not be applied. This sentiment gradually passed away, and in the next century, by the Act of 1718, a large body of English law was expressly made applicable to Pennsylvania, “because the statutes of Parliament did not extend to this province” (Gipson 1915).

3.1.7  Aboriginal Law

Aboriginal land law is the common law doctrine holding that indigenous people have customary land tenure rights over a territory even after the assumption of sovereignty by a colonizing power. The primary basis for such indigenous land rights is continuous and exclusive occupancy of land over an extended period. In addition, additional basis for many aboriginal claims in the United States are the action of governments which antedate the current government (e.g., a grant from Great Britain and Spain), treaties with the United States, acts of Congress, executive actions, or purchase (Morisset 2001).

Aboriginal law as it relates to aboriginal title derives much from aged international law in part not only because of the tendency of contemporary judges to construct it accordingly but also because almost all of these claims have a factual background traceable back a century or more. Aboriginal title has been defined as a species of land ownership that is unique to aboriginal law and that, as the present flow of the law implies, comes with a very unique set of conditions for it to be recognized and enforceable, very different from the law of freehold. It is also known as indigenous title, native title (particularly in Australia), original native title (particularly in the United States), and customary title (particularly in New Zealand). Aboriginal title jurisprudence is related to indigenous rights, influencing and influenced by nonland issues, such as whether the government owes a fiduciary duty to indigenous peoples. While the judge-made doctrine arises from customary international law, it has been codified nationally by legislation, treaties, and constitutions.

An important concept in understanding such aboriginal land rights is that indigenous people's relationship with land does not easily adapt to western concepts of real property and economics. Rather, it is intrinsically connected to cultural, physical, and spiritual well-being in addition to more obvious economic benefits. Native Americans historically did not have a concept of private ownership of land but instead followed a system of tenure of land for the perpetual use and occupancy of the respective tribe. Consequently, Indian and non-Indian cultures held significantly divergent views concerning their uses of and relationships with the land. Where Europeans had an extremely well-defined body of property law based on clear ideas of individual ownership, Native American tribes generally held land communally with shared benefits and burdens. Even when European settlers and developers acquired lands from the Indians by trade and by purchase, each saw the result in a different light. The purchasers, based on their knowledge and understanding of land ownership, believed they were acquiring a title to the land in fee simple. Native Americans, based on their beliefs, believed that they were allowing purchasers the right of use and occupancy of the lands and welcomed that shared use. Without having same concepts and beliefs of land ownership, it was not possible to agree on the ultimate result. This obviously led to significant problems and disagreements.

The colonizing European nations developed the Doctrine of Discovery to justify the process of dominion and subsequent settlement. That doctrine has been described as holding that newly arrived Europeans “immediately and automatically acquired legally recognized property rights in native lands and also gained governmental, political, and commercial rights over the inhabitants without the knowledge or the consent of the Indigenous peoples.” The discovery doctrine remains a foundational legal principle in the United States, New Zealand, Australia, and Canada, as well as elsewhere.

European views of aboriginal land rights were by no means uniform. English, French, Spanish, Dutch, and Swedish concepts varied considerably in their emphasis on discovery, papal authority, royal grant, feudal right, possession, and purchase. The English believed that, based on feudal tenure concepts, the fundamental principle is that the king was the original proprietor and the only possible source of title. The English charters, with the exception of Rhode Island, denied the property rights of the Indians. The Pennsylvania charter of 1681 gave William Penn full rights in his territory, including rights of assigning and granting. However, some Puritans, along with William Penn, were careful to buy from the Native Americans the lands they wished to occupy. Even so, as described previously, the Native Americans believed they were assigning, or conveying, only the right of shared use in the lands. Concerning the French, there are but few examples of grants of Native American lands to Frenchmen, either in public or private capacity. The Dutch based their claims on purchase rather than discovery, or royal or papal patents. They believed that right of discovery of that held by another was wrong. Consequently, records of the Dutch West India Company show that their patents to Dutch settlers transferred ultimate right of ownership only after the grantee had purchased from the local Native American tribes. The policy of the Swedes was similar to that of the Dutch. The Spanish, on the other hand, did not see the same importance as other European powers concerning land ownership. Spaniards thus acquired land from the Native Americans by purchase, royal grant, and forced seizure. Natives could, and did, sell land to private individuals.

The United States was the first colonial nation to recognize aboriginal land rights with early opinions, such as Johnson v. M'Intosh. Such opinions were based on the concept that Native Americans did not have full title to the land because they did not have a concept of individual property rights. Rather, because of the discovery and conquest of this previously unclaimed continent (terra nullis or vacant land) by Europeans and the subsequent revolution and treaties, the United States had exclusive title to all land not previously conveyed by the European sovereigns. Yet, under such policy, Native Americans might have the right of possession of the land on which they live as usufruct (the right to enjoy something owned by someone else), but only at the pleasure of the United States.

Beginning in 1830, the U.S. Indian Removal Acts formalized a policy that resulted in almost complete extinction of aboriginal land interests in the eastern states. Passage of that law in 1830 came after considerable debate and a close vote in Congress, with notables such as Abraham Lincoln and Davy Crockett arguing against the law. Basically, the law provided for Native American tribes to cede their land in the east for payment and land in the west. Some tribes, such as the Seminoles, did not leave peaceably, resulting in the three Seminole Wars. Subsequently, a series of legislation and treaties continued to alienate Native American land and designate the boundaries of reservations for the various tribes.

Currently, there reportedly are 310 Native American reservations in the United States (Figure 3.3), although there are 550 recognized tribes, with a total acreage of 55,700,000 acres or 2.3% of the area of the United States. Thus, Native American tribes now do have sovereign rights over the land on reservations that have been granted through treaties with the United States.

An important concept of Indian Tribal rights and the duty of the United States to enforce them is the concept of trust responsibility, which was first expressed in a decision by Chief Justice John Marshall in Cherokee Nation v. Georgia.

In Cherokee Nation, the tribe filed an original action in the Supreme Court to enjoin enforcement of state laws. The Court refused original jurisdiction, finding that the tribe was not a state of the United States nor a foreign state, and thus not entitled to bring suit directly before the Court. The Court concluded rather that tribes were “domestic dependent nations” and that their relationship to the United States resembled “that of a ward to his guardian.”

Based on that decision and subsequent ones, the trust responsibility doctrine has developed. That doctrine has guided federal action toward Native Americans in governmental actions in treaties, agreements, statutes, executive orders, and administrative regulations, and the trust relationship has become one of the primary cornerstones of aboriginal law in the United States.

In New York v. Shinnecock, Justice Bianco wrote extensively on the law of aboriginal title, borrowing from many previous cases: “Aboriginal title refers to the Indians’ exclusive right to use and occupy lands they have inhabited from time immemorial, but that have subsequently become discovered by European settlers. Aboriginal title derived from the doctrine of discovery provided that discovering nations held fee title to these lands, subject to the Indians’ right of occupancy, and use. Aboriginal title can be extinguished by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise. For extinguishment to occur, the sovereign must intend to revoke the Indians’ occupancy rights. The intent to extinguish aboriginal title must be plain and unambiguous based on either the face of the instrument or surrounding circumstances. Extinguishment cannot be lightly implied. The foundational underpinning of this standard is the policy of the federal government from the beginning to respect the Indian right of occupancy. Thus, given this strong policy, any ambiguity on the issue of whether aboriginal title has been extinguished must be resolved in favor of the Indian tribe.”

Practically nowhere, at least in the United States, are the customs of a people so entrenched and protected as in the State of Hawaii. Regarding this, the court noted in the case of Public Access Shoreline Hawaii by Rothstein v. Hawai'i County Planning Commission by Fujimoto:

We perceive the Hawaiian usage exception to the adoption of the common law to represent an attempt on the part of the framers of the statute to avoid results inappropriate to the isles’ inhabitants by permitting the continuance of native understandings and practices which did not unreasonably interfere with the spirit of the common law. The statutory exception is thus akin to the English doctrine of custom whereby practices and privileges unique to particular districts continued to apply to the residents of those districts even though in contravention of the common law. This is not to say that we find that all the requisite elements of the doctrine of custom were necessarily incorporated in § 1-1. Rather we believe that the retention of a Hawaiian tradition should in each case be determined by balancing the respective interests and harm once it is established that the application of the custom has continued in a particular area.

Aboriginal title may not be alienated, except to the federal government or with the approval of Congress. It must be stressed that Aboriginal title is distinct from the lands that Native Americans own in fee simple and occupy under federal trust.

In recent times, the Alaska Native Claims Settlement Act (1971) extinguished all aboriginal title in Alaska, although the legitimacy of the act remains disputed by some Alaskan natives. Indian Land Claims Settlements extinguished all aboriginal title in Rhode Island (1978) and Maine (1980).

Most other colonized nations have also struggled with aboriginal land rights. As an example, Australia began to experience native land rights litigation in the 1970s, when indigenous Australians became more politically active. After litigation (e.g., Milirrpum v. Nabalco Pty Ltd.) on behalf of Aborigines claiming all of the country, the Aboriginal Land Rights Act 1976 returned approximately 40% of the Northern Territory to Aboriginal ownership. Another Land Rights Act enacted in 1981 had a similar effect in South Australia.

Based on those acts and others, current indigenous land holdings have been estimated to currently include about 15% of the Australian continent. Those land holdings are available for the use, benefit, and residence of both Aboriginal and Torres Strait Islander people. While some holdings are alienable, leasehold, or Crown reserve, much are inalienable freehold land, which cannot be sold or mortgaged. While that restriction is often considered a barrier to business development, it does ensure continuation of indigenous ownership for future generations.

The Canadian experience with aboriginal land rights has been somewhat different from that of both the United States and Australia. The Canadian policy began with a 1763 English royal proclamation. While that proclamation claimed ownership of what is now Canada by the English King, it recognized that indigenous peoples already on the lands had a prior claim, not extinguished by the arrival of the Europeans, and the Crown had a fiduciary duty to protect it for the Aboriginal peoples.

That policy recognizes Aboriginal rights as sui generis, or unique collective rights based on the land being the ancestral territory of indigenous groups. Aboriginal title cannot be held by individual aboriginal persons; it is a collective right to land held by all members of an aboriginal nation. Decisions with respect to that land are also made by that community. Such rights are not granted from an external power but are the result of the occupation of and relationship with their territory as well as their social customs and political systems. In an early judicial ruling to protect such rights, the 1763 Royal Proclamation also stated that such Aboriginal rights could only be extinguished by treaty with the Crown and not ceded directly to settlers.

Subsequent to the 1763 proclamation, Crown representatives and leaders of Aboriginal groups executed treaties throughout most of Canada in efforts to resolve issues of land rights. Those treaties typically traded tenure to land for annuities and certain privileges and legal exemptions. Not all groups signed such treaties, and groups that have never signed treaties can still lodge land claims against the government. As an example, in most of British Columbia, Aboriginal title has never been transferred to the Crown. The British Columbia Treaty Commission defines Aboriginal Rights, which are separate from Treaty Rights, as the practices, customs, and traditions unique to First Nations that were participated in prior to contact with Europeans. Aboriginal Rights, such as the right to hunt and fish, are constitutionally protected and cannot be extinguished by any government. In addition, a number of Indian reserves have been established in Canada where the legal title is held by the federal government for the use and benefit of an Indian group. Currently, there are over 2700 such reserves covering 3,123,550.8 hectares (7,715,170 acres). Also, in the new territory of Nunavut (“our land”), which includes the Arctic Islands and which was carved out of the North West Territories in 1999, title to about 350,000 square kilometers (of the total area of Nunavut of 1.9 million square kilometers) was returned to the Inuit.

As may be seen from the previous discussion, Aboriginal land law generally holds that indigenous people have customary land tenure rights over a territory even after the assumption of sovereignty by a colonizing power. Those rights were not granted by formal title, rather they are the result of the occupation of and relationship with their territory as well as their prevailing social customs. The recognition of such rights has varied widely among colonizing nations and has evolved considerably with time and social mores. Most aboriginal people see their rights as being inherent, collective, and well defined, encompassing such areas as land ownership, education, and the right to self-government.

The overall concept of Aboriginal Title is well summarized by the following 1997 quote from Justice La Forest, then Chief Justice of the Canadian Supreme Court: “In my view, the foundation of aboriginal title (is) the fact that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means. Aboriginal peoples have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. As well, the inescapable conclusion from the Court analysis of Indian title up to this point is that the Indian interest in land is truly sui generis. It is more than the right to enjoyment and occupancy although it is difficult to describe what more in traditional property law terminology.”

3.1.8  Tribal Law

As distinguished from aboriginal law, tribal law is that associated with the right of self-governance and self-sufficiency typically maintained by Native American tribes. Tribal law recognizes the inherent sovereignty or authority of indigenous tribes to govern themselves within the borders of the United States. The U.S. federal government recognizes tribal nations as “domestic dependent nations” and has established a number of laws attempting to clarify the relationship between the federal, states, and tribal governments. While Native American tribal sovereignty is partially limited as “domestic dependent nations,” the same may be stated about the sovereignty of the federal government and the individual states, each of which is limited by the other. Therefore, tribal sovereignty is another form of parallel sovereignty within the U.S. constitutional framework, constrained by, but not subordinate to, other sovereign entities.

Such rights can affect not only Native Americans but also non-Native Americans and property outside of reservations held by others. Because of the supremacy of Native American treaties under the U.S. Constitution, tribal law may be superior to rights based on state or common law (Morisset 2001). Since treaties with Native Americans have their roots in the U.S. constitution, tribal law has its basis in that document and is usually considered to preempt state law. Further, since the United States maintains fee title to much Native American property, that fact also dictates federal law preeminence. Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states, under Washington v. Confederated Tribes of Colville Indian Reservation (1980), and tribes are sovereign over tribal members and tribal land under United States v. Mazurie (1975). It should be noted, however, that the United States retains control over the scope of tribal law making and that laws adopted by Native American governments must also pass the Secretarial Review of the Department of Interior.

A large component of cases dealing with tribal law involves habitat and property. As an example, it has been held in some cases that Native American reserves extend to and include adjacent water, submerged land, and tide-lands (e.g., Alaska Pacific Fisheries v. United States, State v. Edwards). Even where shorelines are not within or adjacent to a Native American reservation, the state still may be required to regulate in accordance with tribal rights. Tribal law also applies to hunting and fishing rights. Generally, Native Americans have exclusive rights to hunt and fish on their reservations. In addition, those rights may extend to off-reservation sites, which are their usual and accustomed locations for such activities, even extending to areas where the underlying submerged lands or tidelands are in private ownership in some cases (U.S. v. Washington). In addition, it has been held in some cases that the treaty right to hunt or fish includes implied rights to have the fishery resource protected by appropriate preservation of habitat or by proper design and construction of culverts and roads. Similar rights have also been held to include on and off-reservation water rights to consumptive uses of groundwater and surface waters in some instances.

Tribal government regulatory powers have been held to include health, zoning, and land use regulations on reservations, including civil jurisdiction over non-Native Americans and fee lands not held by Native Americans. A 1981 case, Montana v. U.S., ruled that Native American tribes have inherent power over their internal affairs as well as civil authority over nonmembers as necessary for the protection of the political integrity, the economic security, or the health and welfare of the tribes.