Tribes & tradition

The American Indian tribes of the Northwest gave up a lot when their leaders signed treaties with the U.S. government in the mid 19th century.

They gave up a lot of land, in particular.

But one thing the tribes, among them the Nez Perce and Umatilla, refused to surrender was a vital part of their culture and history: the right to hunt and fish and gather roots and berries, just as they ancestors had for millennia.

In exchange for their comparatively small reservations, the tribes sold, or ceded, millions of acres of their traditional homelands to the government.

The Confederated Tribes of the Umatilla, for instance, accepted in their 1855 treaty a 172,000-acre reservation, but ceded more than 6 million acres in Northeastern Oregon and Southeastern Washington.

But that treaty, in common with those that most other tribes in the region signed, also guarantees tribal members the right to hunt and fish.

The definitive answer to that question could have dramatic effects not only on tribal hunters, but on non-tribal hunters, the state wildlife agencies that manage big game herds, and the state police who enforce hunting laws.

It’s potentially a big deal.

A case in point happened in Baker County.

In November 2008, James Bronson Jr., a Nez Perce member who lives in Pendleton, was cited for allegedly poaching two bighorn sheep rams in the Lookout Mountain unit south of Richland.

The site is outside the area that the Nez Perce tribe ceded to the government in its 1855 treaty.

District Attorney Matt Shirtcliff and his assistant who is prosecuting Bronson, Chris Storz, contend that the treaty entitles Nez Perce members to hunt, without regard to state regulations, only within the defined boundaries of their tribe’s ceded lands.

The site where Bronson allegedly shot the bighorns is about 12 miles south of the boundary of the Nez Perce ceded lands.

But Baker County Circuit Court Judge Greg Baxter ruled last month that Bronson had the legal right to kill those bighorns because the Nez Perce treaty does not restrict tribal hunters to ceded lands, but allows them to hunt in “open and unclaimed” lands that are part of the tribe’s traditional hunting grounds.

Baxter cited as precedent a Washington state Supreme Court case from 1999, Washington vs. Donald Ray Buchanan. That court ruled that Buchanan, a member of the Nooksack Tribe who had been cited for killing two elk, could, at criminal trial, argue that he was entitled to hunt on any “open and unclaimed” lands and was not confined to his tribe’s ceded lands.

The Washington Supreme Court cited two other court rulings that defined “open and unclaimed” lands as public lands.

The District Attorney’s office intends to appeal Baxter’s ruling.

The Bronson case is significant because, unlike with ceded lands, there are no defined boundaries for “open and unclaimed” other than the distinction between private and public lands.

If “open and unclaimed” is the legal standard, then tribal members could argue that they have the legal right to hunt wherever their ancestors did.

Which is quite a chunk of country, since tribes sometimes traveled thousands of miles from their homelands to hunt prey such as buffalo.

And because tribal hunters, unlike non-tribal members, do not have to comply with state-set limits on the number of animals they kill, a legal precedent arising from the Bronson case could have repercussions throughout the region.

The effects could be especially acute for relatively rare species such as bighorn sheep. In the Lookout Mountain unit, for instance, the Oregon Department of Fish and Wildlife issues just two tags per year allowing non-tribal hunters to kill bighorn rams. And for non-tribal hunters those are once-in-a-lifetime tags.

To be clear, we don’t object to allowing tribal hunters more liberal privileges than their non-tribal counterparts; their treaties guarantee that.

Yet we also recognize the validity of Shirtcliff’s argument that, without defined boundaries showing where tribal members can hunt, there is at least the potential for irresponsible tribal hunters to jeopardize the future of small herds of bighorns.

That said, we’re not overly worried that Baxter’s ruling, if it’s upheld on appeal, would lead to the widespread decimation of big game herds.

The 1999 Buchanan case in Washington didn’t spawn any such abuses.

And the tribes, after all, don’t want to wipe out big game herds any more than non-tribal hunters do.

In general tribes have worked with, rather than against, state wildlife agencies.

For instance, when the Umatilla decided a few years ago to allow its members to hunt bighorn sheep and mountain goats in Baker County, tribal officials adopted hunting regulations nearly identical to the ones the state enforces for non-tribal hunters.

The Umatillas’ hunting here has not forced the state to reduce the number of hunting tags available to non-tribal hunters.

Significantly, though, the Umatilla tribal members have confined their hunting to the tribe’s ceded lands.

Their experience seems to us a suitable template that the Nez Perce and other tribes can follow to help ensure that all hunters, whether tribal members or not, can continue to hunt big game animals that are supposed to belong to all of us.