(CN) — The Ninth Circuit on Tuesday sided with the Northwestern Band of the Shoshone Nation in its appeal against the state of Idaho in a dispute relating to tribal hunting rights.
The appeals court ruled the lower court must revisit claims pertaining to the state's interpretation of the 1868 Treaty of Fort Bridger.
That treaty between the U.S. and several bands of the Shoshone and Bannock Tribes ceded land from the Shoshone Nation as a promise of peace in exchange for a guarantee that its people maintained the right to hunt on unoccupied lands. Before the 19th century, bands of the Shoshone nation lived on over 80 million acres of land in what's now Wyoming, Colorado, Idaho and Nevada for thousands of years.
In June 2021, the tribe sued the state of Idaho and two officials from the state's Department of Fish and Game for citing two tribal members for hunting without tags, arguing its members possess the right to hunt under the 1868 treaty.
Idaho officials disagreed, contending that the treaty permits only tribal members with permanent residence on the Fort Hall or Wind River Reservations to hunt on unoccupied lands in the U.S.
Idaho specifically 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 pointed out that while most Northwestern Band members moved into the reservations by the 1870s, the bands whose descendants comprise the Northwestern Band today settled in northern Utah.
Chief U.S. District Judge David Nye agreed with this interpretation, and he partially dismissed the case for failure to state a claim — an order that will now be revisited on remand.
In Tuesday’s opinion penned by U.S. Circuit Judge Jennifer Sung, the Biden appointee said that the treaty’s terms must be read in “context and construed as they would naturally be understood by the tribes,” stating that the treaty places no condition that reserved hunting rights are predicated on the Northwestern Band relocating to a reservation.
“The treaty imposes only four conditions on the tribes’ right to hunt,” Sung wrote, noting that two conditions describe land where they may hunt: land belonging to the U.S. and unoccupied land. The judge said that the treaty only conditions tribal rights to hunt "so long as game may be found" on occupied federal land and "so long as peace subsists among the whites and Indians on the borders of the hunting districts."
“The treaty does not expressly identity permanent residence on a reservation as a fifth condition of the hunting right,” Sung wrote, adding that the tribes would not have understood treaty terms to mean that they, or any specific band, would lose its reserved hunting rights if they didn't relocate.
The judge said the panel was not persuaded by Nye’s determination that the promise to live on a reservation was a critical component of the treaty, saying that “misunderstands the treaty in several significant ways.”
“First, the United States did not ‘grant hunting rights’ to the tribes; rather, the tribes ceded their land to the United States but reserved their existing rights to hunt on that land,” Sung wrote, adding that the U.S. received substantial consideration under the treaty given that the tribes promised to maintain peace and relinquish over 40 million acres of land.
Sung also noted that Idaho attached to their answering brief on appeal a report from U.S. negotiator General Christopher Auger on the Fort Bridger Treaty, which she interpreted as actually supporting the Northwestern Band's position, as the general said the U.S. wanted the tribes to lie on reservations in order to help them, but he did not "describe living on a reservation as a requirement or condition of the hunting right."
Earlier in the order, Sung explained how the treaty — negotiated and signed by Shoshone Chief Washakie — was made on behalf of several bands comprising the Shoshone Tribe and included the Northwestern Band, even though the Indian Claims Commission knew the band’s leader, Chief Pocatello, was not present at the treaty’s signing and the land ceded to the U.S. comprised the band’s favored areas in southern Idaho and northern Utah.
Prior to that moment in history, western settlement had already disrupted the bands’ way of life, which relied on hunting, fishing and gathering practices, leading many Shoshone to near starvation by 1849.
In 1863, according to Sung, the Military District of Utah attacked a Shoshone encampment at Bear River, “killing hundreds of Shoshone and nearly exterminating one of the bands.” The massacre prompted the Commissioner of Indian Affairs to tap the Superintendent of Indian Affairs for the Territory of Utah, James Duane Doty, to negotiate with the Shoshone so that they may “return to their hunting grounds” and “secure peace” so that travelers could pass through — resulting in the the treaty at issue.
During oral arguments last February, the federal government 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.”
U.S. Circuit Judges Milan D. Smith and Danielle J. Forrest — appointed by George Bush and Donald Trump, respectively — rounded out the appeals court panel.
Representatives of the Northwestern Band did not immediately respond to requests for comment.
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