Treaty Hunting Rights on National Forests and Other Public Lands by Steven Small April 6, 2018, Scottsdale, Arizona Holland & Hart LLP

Transcription

1 Treaty Hunting Rights on National Forests and Other Public Lands by Steven Small April 6, 2018, Scottsdale, Arizona Holland & Hart LLP

2 Evolving Treaty Language When the United States gave peace, did they not also receive it? Were not both parties desirous of it? If we consult the history of the day, does it not inform us that the United States were not at least as anxious to receive it as the [Indians]? Chief Justice John Marshall Worcester v. Georgia, 31 U.S. (6 Pet.) 515,551 (1832). 2

3 Pre-Civil War Treaty Language [T]he privilege of hunting... upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the president Treaty with several Great Lakes Bands of Chippewa Indians. See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 177 (1999). The Indians do not surrender the privilege of hunting... [on] any of the tracts of country described in the treaty, which encompassed lands in what are now parts of the Dakotas, Wyoming, Montana, Nebraska, and Colorado Treaty with the Crow, Sioux, et al., 11 Stat

4 Pre-Civil War, cont. The Indians shall have the right to hunt and fish [on the ceded lands] until otherwise ordered by the President Treaty with other Great Lakes Bands of Chippewa Indians. U.S. v. Gotchnik, 222 F.2d 506, 508 (8th Cir. 2000). [T]he privilege of hunting is secured to the Indians upon open and unclaimed land. Mid- to late-1850s series of Stephens Treaties with West Coast and interior tribes in areas now encompassing parts of Washington, Oregon, Idaho, and Montana. See, e.g., State v. Arthur, 261 P.2d 135, 136 (Idaho 1953). 4

5 Post-Civil War Treaty Language Right to hunt off-reservation in specified ceded lands is reserved so long as the buffalo may range thereon in sufficient numbers to justify the chase Treaties with several Plains tribes: See, e.g., Treaty with the Sioux, art. XI, 15 Stat Right to hunt off-reservation is reserved in specified ceded lands so long as game (or large game ) is sufficient to justify the chase. See, e.g., Treaty with the Navajo, art. IX, 15 Stat The Indians shall have the right to hunt upon the unoccupied lands of the United States so long as game may be found thereon and as long as peace subsists with non-indians Treaties with Crow and Shoshone-Bannock tribes in areas now encompassing parts of Montana, South Dakota, Wyoming, and Idaho. See, e.g., Crow Tribe of Indians v. Repsis, 73 F.3d 982, (10th Cir. 1995).

6 Post-1871 (Ratified Agreements) [T]he United States shall permit the Ute Indians to hunt upon [the ceded] lands so long as the game lasts and the Indians are at peace with the white people Agreement with Ute Indians in Colorado. Art. II, 18 Stat. 36. [F]or so long as the [ceded lands] shall remain public lands of the United States, the Indians have the right to hunt on them Agreement with Blackfeet Indians in Montana: See, e.g., U.S. v. Peterson, 121 F. Supp. 2d 1309, 1312 (D. Mont. 2000) Agreement with the Shoshone- Bannock in Idaho: So long as [the ceded] lands remain part of the public domain, the Indians have the right to hunt on them. 6 See, e.g., Swim v. Berglund, 696 F.2d 712, 714 (9th Cir. 1983).

7 Public Lands Case Law Ward v. Race Horse, 163 U.S. 504 (1896) The provision in the Treaty of February 24, 1869, with the Bannock Indians, whose reservation was within the limits of what is now Wyoming, that they shall have the right to hunt upon the unoccupied lands of the United States so long as game may be found thereon, does not give the Bannock the right to exercise this privilege within the limits of that state in violation of its laws. U.S. v. Winans, 198 U.S. 371, 381 (1905) 7 Reserved rights: not much less necessary to the existence of the Indians than the atmosphere they breathed.

8 Arthur; Kimball; Stasso State v. Arthur, 261 P.2d 135 (Idaho 1953) 1855 treaty hunting rights remained valid, and Indians could hunt free from state regulation on public lands in particular, national forests. Kimball v. Callahan, 493 F.2d 564, 569 (9th Cir. 1974). National forests in Oregon are open for treaty hunting. State v. Sasso, 563 P.2d 562, 565 (Mont. 1977) National forests in Montana are open for treaty hunting. 8

9 Antoine v. Washington Antoine v. Washington, 420 U.S. 194 (1975) The Supreme Court held that treaties and laws must be construed in favor of tribes; that the Supremacy Clause precludes the application of state game laws to the tribe; that Congress showed no intent to subject the tribe to state jurisdiction for hunting; and while the state can regulate non-indians in the ceded area, Indians must be exempted from such regulations. 9

10 Repsis; Mille Lacs Crow Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995) The Tenth Circuit held that Wyoming s statehood in 1890 abrogated the off-reservation hunting rights that the Crow had earlier reserved in their 1868 Treaty. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999) The Supreme Court rejected the concept of implicit abrogation of treaty rights by the occurrence of statehood, the principle on which the Repsis court had relied upon. 10

11 Treaty Rights Today Disputes over treaty rights today are not over whether the right to treaty hunt survived statehood, but mostly over whether the place where the treaty hunting occurred other than a national forest is subject to the specific treaty language in question. State v. Buchanan, 978 P.2d 1071 (Wash. 1999) State v. Cutler, 708 P.2d 853 (Idaho 1985) U.S. v. Gotchnik, 222 F.2d 506 (8th Cir. 2000) Mille Lacs Band of Chippewa Indians v. Minnesota, 952 F. Supp (D. Minn. 1997) United States v. Hicks, 587 F. Supp (W.D. Wash. 1984) U.S. v. Peterson, 121 F. Supp. 2d 1309, 1312 (D. Mont. 2000). 11

12 The Outlier: Wyoming A Wyoming court followed an alternative holding in Repsis that national forests by their nature are occupied, and treaty hunters must, therefore, comply with state hunting regulations within them because the creation of a national forest extinguishes treaty hunting rights. 12

13 Repsis Alternative Holding Has not been followed by other courts; and Contrary to precedent in other jurisdictions Swim v. Berglund, 696 F.2d 712 (9th Cir. 1983). State v. Tinno, 497 P.2d 1386, 1391 (Idaho 1972) National Forest Reserves Enabling Act, 26 Stat. 1095, 1099, 24 (1891) ( nothing in this act shall change, repeal or modify any agreements made with any Indian tribes for the disposal of their lands... and the disposition of such lands shall continue in accordance with the provisions of such treaties or agreements ). 13

14 The Questions Presented Whether Wyoming s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians 1868 federal treaty right to hunt on the unoccupied lands of the United States, thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family. (Herrera s Q.P.) [Due to the Tenth Circuit s decision in Repsis] whether the doctrine of collateral estoppel precludes Herrera from relitigating the Crow Tribe s hunting rights within Wyoming. (Wyoming s Q.P.) 14

15 Conclusion Does the treaty or ratified agreement language provides contemporary rights to Indians to hunt free from state regulation on public lands? The specific treaty language should control. Unless: Congress has explicitly extinguished the right in subsequent legislation. And national forests? 15

16 QUESTIONS?