Wyoming looks toward hunting agreement with tribes.

[JM77]

Another slice of the pie?

Post-Herrera, Wyoming seeks hunting pacts with tribes - WyoFile

Landmark legislation, initiated by the Eastern Shoshone tribe, would grant Wyoming’s governor the authority to negotiate tribal hunting and fishing seasons on off-reservation lands.

wyofile.us20.list-manage.com

 

[Big Fin]

I saw this in my subscription email this morning. It is timely for some podcast research I have been doing.

I talked with some attorneys who are experts on treaty rights. They gave me another way to view it that I had not thought of previously. I'll try to paraphrase.

The treaties did not "grant" rights to the tribes from the US Government. Rather the tribes granted some rights (mostly property rights) to the US Government and retained/reserved other rights (rights to hunt and fish on these lands). The tribes already held these rights and the US government acknowledged those rights.

The list of rights the tribes were recognized as holding were the property rights, both surface and subsurface, the water rights, the timber rights, the (insert rights often associated with "the bundle of sticks" commonly used to explain property rights). Those acknowledged rights, governed by treaties and possibly sold/granted/reserved/retained also included hunting and fishing rights.

Thus, there were no rights being granted to tribes by treaties, rather some rights held by the tribes and acknowledged by the US Government were retained/reserved by the tribes. Even though land was sold/granted to the US Government, in the form of property rights, some existing rights were reserved, mostly hunting rights, and are still legally valid on those lands/property that was sold.

That gives a different lens through which to view this issue. Kind of like a landowner giving up certain rights in a sale or easement, say the mineral rights or the development rights or the access rights, yet they most often retain/reserve their other rights.

Not sure the comments of the attorneys have much to do with the legal frameworks that Wyoming is working on with tribes. But, it forces me to think about how the hunting and fishing rights, as stated in the treaties were rights that already existed and those rights were retained/reserved by the tribes in the treaties, even on lands for which they might have sold the surface and subsurface rights to as part of the treaty.

Sticky, complicated, and at times, contentious. And surely makes conservation more challenging (as if it weren't challenging enough).

 

[Oak]

This doesn't seem like a bad strategy to me. Working with tribes that have retained hunting rights through treaties is probably a better way to go than fighting every step of the way and potentially having less say in future management.

Edit: Big Fin in before me with a much better reply.

 

[ccc23454]

I don't understand how a state can resolve these issues, only the federal goverment could negotiate any true solution the way i understood it previously.

 

[Irrelevant]

I find it relatively interesting that the State is basically just proposing the Tribes follow the existing state law. While that is certainly in the best interest of the State and, I would argue the wildlife, not sure I'd agree to the side boards if I was the Tribe, esp not with how that court "resolved" the case.

 

[JM77]

I am interested to see where the definition of "unoccupied " lands falls. SCOTUS sent that back to the state to resolve.

Also, I'm curious if the Arapaho treaty did not include hunting terminology, what happens with that.

 

[ashersdad]

I had never thought of it like that Randy. Definitely makes sense and gives me a different thought process.

 

[kansasdad]

I talked with some attorneys who are experts on treaty rights. They gave me another way to view it that I had not thought of previously. I'll try to paraphrase.

The treaties did not "grant" rights to the tribes from the US Government. Rather the tribes granted some rights (mostly property rights) to the US Government and retained/reserved other rights (rights to hunt and fish on these lands). The tribes already held these rights and the US government acknowledged those rights.

Ahhhhh.....the other side of the pancake

 

[PrairieHunter]

Oklahoma has been dealing with this issue in recent years. And it goes well beyond hunting.

https://www.npr.org/2020/07/09/889562040/supreme-court-rules-that-about-half-of-oklahoma-is-indian-land

Chickasaw Nation starts licensing hunters: FAQ on tribal hunting licenses in Oklahoma

The Cherokee and Choctaw nations launched their own programs earlier this year in response to a dispute with Gov. Kevin Stitt.

www.oklahoman.com

Deer Hunting Violation Leads to Legal Skirmish Between Oklahoma, Native Tribes

The state asserts its civil authority after U.S. Supreme Court decisions on criminal jurisdiction.

www.wsj.com

 

[idahohuntr]

It is an interesting article - but the State has no real leverage unless they are willing to decimate game populations. Tribes with a treaty right to hunt are not limited to just tribes currently located in Wyoming (i.e., Crow, Shoshone-Bannock, and others) and other than a very high 'conservation' bar - there is no mechanism for the state to directly limit or restrict tribal harvest of wildlife. That said - cooperation between states and tribes will go a long ways to benefiting the resource...but in my experience, the State of Wyoming better start getting real friendly with Tribes or they are going to find out just how powerless they are when it comes to wildlife/hunting management. The United States has a very impressive win record when it has had to step in over the years and sue States to get compliance with treaties...as they did in Hererra.

I am interested to see where the definition of "unoccupied " lands falls. SCOTUS sent that back to the state to resolve.

Also, I'm curious if the Arapaho treaty did not include hunting terminology, what happens with that.

They remanded it back to the court - to allow the State to make an occupied lands argument if they want to try, but I doubt they will because the standard is basically established through decades of previous treaty litigation...unoccupied lands are generally any public lands not put to (or reserved for) a use inconsistent with hunting. So...any BLM, USFS, etc. lands that are open to non-tribal hunting...unoccupied. Military bases, high density recreation areas, etc. would likely be considered 'occupied'. If its public land you and I can hunt...very, very unlikely a court would deem them 'occupied' in a treaty hunting case.

 

[idahohuntr]

I thought it was just the Gov/Legislature in WY that was off base on tribal treaty rights...appears the Director is not well informed on treaty rights as well. The state of WY has virtually no authority to regulate off reservation treaty tribal harvest seasons/quantity/means/methods for most game.

Wyoming game wardens, in the meantime, will be taking their cues from county prosecutors, though Game and Fish Director Brian Nesvik said he expects for his officers to treat tribal members and non-tribal members the same.

“We certainly believe the law is on our side,” Nesvik said. “It’s still not legal — until we can come up with some kind of an agreement — for tribal members to be taking wildlife outside of the normal seasons and without licenses.”

Tribal hunting bill dies, but not before ‘poisoning the well’ - WyoFile

Sovereign-to-sovereign agreement, once the top legislative priority for wildlife managers, fell apart once it lost tribes’ support. Clarifying off-reservation hunting parameters now falls more squarely in the courtroom.

wyofile.com

 

[Dougfirtree]

I thought it was just the Gov/Legislature in WY that was off base on tribal treaty rights...appears the Director is not well informed on treaty rights as well. The state of WY has virtually no authority to regulate off reservation treaty tribal harvest seasons/quantity/means/methods for most game.

Wyoming game wardens, in the meantime, will be taking their cues from county prosecutors, though Game and Fish Director Brian Nesvik said he expects for his officers to treat tribal members and non-tribal members the same.

“We certainly believe the law is on our side,” Nesvik said. “It’s still not legal — until we can come up with some kind of an agreement — for tribal members to be taking wildlife outside of the normal seasons and without licenses.”

Tribal hunting bill dies, but not before ‘poisoning the well’ - WyoFile

Sovereign-to-sovereign agreement, once the top legislative priority for wildlife managers, fell apart once it lost tribes’ support. Clarifying off-reservation hunting parameters now falls more squarely in the courtroom.

wyofile.com

I can't say that I'm surprised. All the language being used makes it clear that the state thinks it has more bargaining power than it does (according to the Supreme Court). This reality is going to be a hard pill for a lot of people to swallow.

 

[NAHMINT]

Thats a ''slippery-slope'' that can go off track quickly.........
the ''keepers of the land'' have claimed ALL of British-Columbia as ''their land'' .....just saying, be very careful.

 

[Rhcuam]

Do these tribes receive any type of state funding?

 

[Derek44]

Do these tribes receive any type of state funding?

What would that have anything to do with? Other than I guess if the state would like, they could withhold funding for the tribes attempting to live by their “retained rights” that were signed to by the federal government when they were strong armed into treaties so they would give up their land.

 

[Nicoli7153]

The US recognized them as sovereign nation when we entered in to a treaty with them. The ceded lands has been an issue in Michigan with tribal governments. I believe one of the canons of construction regarding ambiguity have been a relevant issue in our state. FWIW

 

[Rhcuam]

What would that have anything to do with? Other than I guess if the state would like, they could withhold funding for the tribes attempting to live by their “retained rights” that were signed to by the federal government when they were strong armed into treaties so they would give up their land.

You beat me to my point. That is why I asked if they receive any funding from the state of Wyoming. Cut the funding to the programs, cut any assistance they receive. It appears they don’t want to recognize the state of Wyoming, only federal government. Why should the state provide any assistance to them?
Again, this is assuming they receive any type of state or county funding. Maybe they don’t.

 

[Derek44]

You beat me to my point. That is why I asked if they receive any funding from the state of Wyoming. Cut the funding to the programs, cut any assistance they receive. It appears they don’t want to recognize the state of Wyoming, only federal government. Why should the state provide any assistance to them?
Again, this is assuming they receive any type of state or county funding. Maybe they don’t.

So should the Federal Govt. cut off funding to the state for them not wanting to adhere to the treaties that were signed? Maybe WY doesn’t receive any federal funding. I’m just assuming.

 

[Rhcuam]

I believe the treaties would be should be the responsibility of the federal government, not the state of Wyoming.
“that were signed to by the federal government when they were strong armed into treaties so they would give up their land.”
Anyway, they weren’t strong armed by anyone. And it wasn’t their land. Just because of nomadic society claims a quarter of the United States does not mean it’s their land. And if that’s the route they want to go, their land was lost through negotiations and war. To the victor goes spoils or something like that.

 

[Dougfirtree]

So should the Federal Govt. cut off funding to the state for them not wanting to adhere to the treaties that were signed? Maybe WY doesn’t receive any federal funding. I’m just assuming.

I hear that Wyoming's entire state budget is funded 100% through NR tag fees...