United States Court of Appeals for the Ninth Circuit: While deciding the instant appeal wherein the Court had to interpret the 1868 Treaty of Fort Bridger between the United States and several bands of the Shoshone and Bannock Tribes, including the Shoshone’s Northwestern Band; the Bench of Milan D. Smith, Jr., Danielle J. Forrest, and Jennifer Sung*, Circuit Judges, concluded that the 1868 Treaty does not make maintenance of the Tribes’ reserved hunting rights contingent on permanent residence on a designated reservation.
Background: The Shoshone Tribe from time immemorial, roamed over, lived upon, occupied, and used over 80 million acres of territory in present-day Idaho, Colorado, Utah, Nevada, and Wyoming. By 1849, the westward migration and settlement of European Americans had caused substantial losses to game and other natural resources on which the Shoshone depended for survival.
Taking note of the history of conflict between the European Americans and the Tribes, by June 1863 the Commissioner of Indian Affairs directed the Superintendent of Indian Affairs for the Territory of Utah, to meet with the Shoshone so that, some arrangement may be made by which they can with satisfaction return to their hunting grounds, and upon terms which shall secure peace and satisfaction.
In 1868, the United States, certain Shoshone bands, and the affiliated Bannock Tribe entered into the Treaty of Fort Bridger. In Article I of the Treaty, the parties pledged to maintain peace. In Article II, the United States agreed to “set apart for the absolute and undisturbed use and occupation of the Shoshonee Indians” a reservation in the Wind River area of present-day Wyoming. As per the Treaty of Fort Bridger in 1868, the affiliated Shoshone and Bannock Tribes ceded most of their territory to the United States. At the same time, the Tribes expressly reserved their right to hunt on unoccupied lands of the United States.
Article IV, which includes the disputed hunting-right provision, stated that, “The Indians herein named agree, when the agency house and other buildings shall be constructed on their reservations named, they will make said reservations their permanent home, and they will make no permanent settlement elsewhere; but they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts”.
The group of Northwestern Shoshones who settled in Utah is federally recognized as the Northwestern Band of the Shoshone Nation.
In the instant case, The Northwestern Band filed the complaint against the State of Idaho, Governor Brad Little, Idaho Department of Fish and Game Director Ed Schriever, and Idaho Department of Fish and Game Enforcement Bureau Chief, Greg Wooten.
It was contended by the officials of Idaho that the reserved hunting right was based over the condition of permanent residence on a designated reservation, and that Northwestern Band members cannot exercise the Tribes’ treaty-reserved hunting right because the Northwest Band does not reside on a designated reservation.
The afore-stated contention was agreed upon by the District Court, thereby resulting in the instant appeal.
Court of Appeal’s Assessment:
The issue on appeal was whether the District Court erred in concluding that the Treaty makes the reserved hunting right contingent on permanent residence on the Fort Hall or Wind River Reservations. The Court decided to review de novo the interpretation of treaty language.
Perusing the Treaty of 1868 and contentions presented by the respondents, the Court pointed out that Treaty’s terms must be read and construed in context as they would naturally be understood by the Tribes. Reading Article IV in context, the Court concluded that the Tribes “naturally would have understood” its terms to mean that they were agreeing to give up their claims to and rights in their ancestral territory and relocate to reservations, but also reserving (and thus retaining) their right to hunt throughout that territory.
The Court pointed out that the Treaty imposes only four conditions on the Tribes’ right to hunt. Two of the conditions describe the land where the Tribes may hunt. The Treaty also conditions the Tribes’ right to hunt using expressly conditional language- “the Tribes may hunt so long as game may be found” on the unoccupied federal land, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.”
The Court further pointed out that the Treaty does not expressly identify permanent residence on a reservation as a fifth condition of the hunting right. If the parties to the Treaty had intended to make permanent residence on a reservation a fifth condition of the hunting right, they could have easily done so, for example, by using the same clear language that they used to impose the other conditions on the hunting right.
The Court also concluded that the Tribes would not have naturally understood the terms of Article IV to mean that a tribe, or a band of the tribe, would lose its reserved hunting right if it did not move to a reservation.
After carefully studying Article II of the Treaty, the Court pointed out that the parties did not intend to make the hunting right contingent on permanent residence on a reservation. Furthermore, Article II did not specify size or geographic boundaries of the reservation agreed upon by the US, therefore, the Court concluded the Indians would not have understood Article IV to mean that the Bannock (or any Shoshone band) would forfeit its reserved hunting right if it did not reside on a reservation.
The Court further stated that the District Court misunderstood the Treaty of 1868 in several significant ways because United States did not “grant Hunting Rights” to the Tribes; rather, the Tribes ceded their land to the United States but reserved their existing right to hunt on that land.
Upon careful study of the Treaty, the Court also found that the promise to reside on a reservation was not critical or material to the parties’ agreement. The critical promises made by the Tribes were the promise to maintain peace and the promise to relinquish their land claims. Indeed, the parties expressly made the reserved hunting right contingent on maintaining peace. In contrast, the parties did not expressly make the reserved hunting right contingent on living on a reservation.
[Northwestern Band of the Shoshone Nation v. Greg Wooten, No. 22-35140, decided on 17-10-2023]
*Opinion by Jennifer Sung, Circuit Judge
