## Facts

- In October 1987, individuals identifying as members of the Missisquoi Abenaki participated in a “fish-in” on the Missisquoi River and fished without Vermont licenses to assert asserted aboriginal fishing rights.
- The State charged thirty-six defendants with fishing without a license under Vermont’s fish and wildlife laws.
- Defendants moved to dismiss, claiming they were members of a currently viable tribe with ancestral occupation “from time immemorial,” possessing aboriginal title and related rights to hunt and fish free from state licensing in parts of northwestern Vermont.
- The district court accepted the aboriginal-title theory and dismissed charges against most defendants.
- The State took an interlocutory appeal, arguing that defendants lacked qualifying tribal status and, in any event, any aboriginal title had been extinguished by sovereign action and historical developments.

## Issues

1. What elements must be shown to establish aboriginal title, including tribal status and continuous, exclusive occupation of a definable ancestral homeland?
2. Whether any aboriginal title or occupancy rights held by the Missisquoi Abenaki in Vermont were extinguished as a matter of federal law.
3. If aboriginal title was extinguished, whether defendants could rely on asserted aboriginal hunting and fishing rights to defeat state charges for fishing without a license.

## Decision

- The Vermont Supreme Court reversed the district court’s dismissals.
- The Court held that any Abenaki aboriginal title in Vermont had been extinguished.
- Because aboriginal title had been extinguished, defendants could not claim immunity from Vermont’s fishing-license requirements and wildlife regulation.

## Legal Principles

- Aboriginal title is a tribe-based right of occupancy in ancestral lands, arising from pre-colonial occupation of a definable homeland and requiring exclusive occupation as against other tribes.
- The validity of aboriginal title does not depend on a treaty, statute, or formal governmental recognition; a claimant must prove tribal existence throughout the relevant period and non-abandonment of tribal status.
- Extinguishment of aboriginal title is governed by federal law, and the authority to extinguish rests with the federal sovereign.
- Intent to extinguish need not be express, but it must be shown by evidence demonstrating a plain and unambiguous intent to end exclusive aboriginal occupancy rights; intent is not lightly inferred.
- A cumulative historical record of sovereign acts—such as land grants, settlement, governance, and integration of territory into non-Indian property systems—may support a finding that aboriginal title has been extinguished.

## Conclusion

The Vermont Supreme Court held that, even assuming defendants could satisfy the prerequisites for aboriginal title, the historical course of sovereign action in Vermont demonstrated extinguishment of any such title, leaving defendants subject to state fishing-license laws.


State v. Elliott, 159 Vt. 102, 616 A.2d 210 (Vt. 1992)