Ninth Circuit hears case over tribal hunting rights

PORTLAND, Ore. (CN) – A 155-year-old question of Indigenous hunting rights made its way to the Ninth Circuit on Monday, where judges contemplated remanding the dismissal of a case over hunting and fishing rights for the Northwestern Band of the Shoshone Nation in Idaho.

In June 2021, the tribe sued the state of Idaho and two officials from the Department of Fish and Game for citing two tribal members for hunting without tags. The tribe argues its members possess the right to hunt under the 1868 Fort Bridger Treaty.

As outlined by Northwestern Band in 2021, bands of the Shoshone nation lived on over 80 million acres of land throughout Wyoming, Colorado, Idaho and Nevada for thousands of years until the 19th century. At the time of westward expansion, the Shoshone nation consisted of 14 bands, where Washakie was recognized as the main chief of the Shoshone tribe.

With the California gold rush and the Mormon expansion in Utah came an increased number of settlers, resulting in the disappearance of game and agricultural resources. The Shoshone were brought to practical starvation, especially within southern Idaho and northwestern Utah, eventually leading Washakie to enter the Shoshone nation into a treaty agreement with the U.S.

The Fort Bridger Treaty ceded land from the Shoshone nation as a promise of peace in exchange for guaranteeing that its people had the right to hunt on unoccupied lands.

“The state of Idaho does not accept that the Northwestern bands of the Shoshone nation were signatories to the 1868 Fort Bridger Treaty, nor does the State of Idaho accept that members of the Northwestern Band — the federally recognized tribal entity of the Northwestern Bands — have the right to hunt on unoccupied lands pursuant to the treaty,” the tribe says in its lawsuit.

In its motion to dismiss, Idaho argued the U.S. entered into a treaty with the Eastern Shoshone and Bannock tribes, ceding Shoshone territory for the creation of two reservations and the preservation of off-reservation hunting rights. The state also points out that while most of the Northwestern Band members moved into the two reservations by the 1870s, the bands whose descendants comprise the Northwestern Band today did not move on to reservations but settled in northern Utah.

“Because the Northwestern Band has failed to allege facts demonstrating it has complied with the Fort Bridger Treaty of 1868’s requirement that the tribe make the reservations a permanent home, it is not, as a matter of law, entitled to exercise the treaty’s hunting and fishing rights. Therefore, this court should dismiss the Northwestern Band’s complaint for failure to state a claim upon which relief may be granted,” Idaho argued.

Chief U.S. District Judge David Nye partially granted Idaho’s motion to dismiss in January 2022, agreeing that the promise to live on a reservation was a critical component of the 1868 treaty.

“It would make little sense for the government to grant hunting rights but not receive anything in exchange,” Nye wrote. “Based on the plain language, it is unambiguous that the hunting rights were inextricably tied to the promise to live on the reservation, and a tribe cannot receive hunting rights without living on one of the appropriate reservations.”

Yet at oral arguments Monday, judges of the Ninth Circuit seemed less convinced.

According to Northwestern Band on appeal, Nye erred in concluding the plain language of the treaty precludes the tribe’s claim to hunting rights and mainly that it failed to consider that the government’s objective for the treaty was to enable white settlement in Shoshone territory.

“The district court acknowledged that it needed to consider the Northwestern Band’s understanding of the 1868 Treaty, but it did not actually do so,” wrote Northwestern Band in its appellate brief. “It failed to accept the relevant factual allegations in the complaint as true and to consider the available evidence, both of which show that the Band would have understood that, after ceding its lands, it would maintain its hunting rights so long as it maintained the peace with the white settlers, which it did.”

The U.S. and the state of Utah argued in support of Northwestern Band.

“The central point is that the band upheld their part of the deal,” U.S. Attorney Mary Sprague told the panel. “They ceded their land. They just kept the reserved hunting rights because they were starving and that was necessary for their livelihood. Now fortunately, the members of the band are not starving but still this is a very important part of their cultural identity that they ask to be allowed to continue. And there’s nothing in the treaty that says they can’t.”

Utah Assistant Attorney General Lance Sorenson shared similar sentiments but also said the tribe didn’t even get a chance to gather evidence and present their interpretation of the treaty.

“So from your perspective, if you were us and we wrote an opinion, what would you want it to say?” asked U.S. Circuit Judge Milan Smith Jr., a George Bush appointee.

Sorenson answered, “I think the treaty can be interpreted on its face and that’s why we’re here on appeal, is to interpret this provision of the treaty and it can interpreted as a matter of law to say that number one, these hunting rights and fishing rights were never conditioned on relocation and if there other issues that need to be remanded to the district court, they can be remanded."

Idaho Deputy Attorney General Owen Moroney had a tougher time convincing the panel that hunting rights were “the carrot that induced the tribe to move to the reservation.”

“Why?” asked Smith. “If they had those rights before and they gave up 44 million acres, why do the hunting rights even factor into it? Those rights were critical. I gather you take the position the United States created those rights. Your opposition suggests that they had those rights before and they simply reserved them, but the big deal was the land and the peace, right? The reservation was the place for them to go. Some went some didn’t.”

Before closing, Smith noted how “this is obviously an important case” but neither he nor U.S. Circuit Judges Danielle Forrest, a Trump appointee, and Jennifer Sung, a Joe Biden appointee, indicated how they will rule.

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