Fighting for the Right to Hunt and Gather
In February, the state of Washington argued in court that, despite the guarantees in the 1855 Treaty of Point Elliott, the Snoqualmie Indian Tribe have no right to hunt and gather traditional food on the land they ceded. According to Article V of the Treaty of Point Elliott: “The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands.”
These rights were heavily and sometimes violently contested until 1974, when U.S. District Judge George Boldt issued a landmark decision finding the government bound by Article V. But in 2019, Washington state reversed course. As part of a state overhaul of the process for designating the traditional territories where treaty tribes can hunt and fish without a license, Washington Department of Fish & Wildlife Director Kelly Susewind declared that the Snoqualmie had no such right. The judges did not indicate when they would issue a ruling in the case.
Restoring Treaty Rights
Last week, the Biden administration restored tribal mineral rights that the Trump administration took away. The Interior Department returned a portion of the Missouri River to the jurisdiction of the Fort Berthold Indian Reservation. In 2020, the Trump administration had deemed the section of the river to be under the jurisdiction of the state of North Dakota instead of the Mandan, Hidatsa, and Arikara Nation, also known as the MHA Nation.
The tribes had challenged the Trump administration’s opinion, which granted a stay to the Interior Department to review the decision. Meanwhile, the state of North Dakota maintains that it has mineral rights on the tribal lands.
Water Rights Win
The United States Court of Appeals for the District of Columbia affirmed the dismissal of a lawsuit recently brought by Oregon ranchers which would have prevented the Klamath Tribes from exercising their water rights when they interfere with Oregon ranchers’ irrigation.
The district court originally dismissed the ranchers’ lawsuit for lack of standing under Article III of the U.S. Constitution and ruled that the Klamath Tribes’ water rights, pursuant to a treaty made in 1864, superseded the water rights of the ranchers. In the treaty, the Klamath Tribes ceded the majority of their land to the U.S., but reserved the right to the Klamath Reservation, where they possessed the exclusive ability to fish and gather. These rights were taken in 1887 but were restored nearly 100 years later.
The court found that because the Klamath tribes had the right to enforce their water rights superior to those of the ranchers, regardless of any action of the federal government, there was no causation between the federal government and the injuries the ranchers claimed to have suffered.
Tribal Law Enforcement Authority
Does a tribal officer have the authority to detain a non-Indian on tribal land? Earlier this month the Supreme Court heard oral argument in United States v. Cooley. At issue is in this case is whether the court should exclude evidence that a tribal police officer collected while detaining and searching a non-Indian driver stopped alongside a federal highway that runs through the reservation. United States v. Cooley is a long overdue case that could potentially clarify what Indian tribal governments’ lack of criminal jurisdiction over non-Indians means for tribal policing.
If it had been a “normal” police stop-and-search case, the question would only be whether the officer had reasonable suspicion of criminal activity. But because the highway involved is within the boundaries of an Indian reservation, the officer is a tribal police officer and the defendant is a non-Indian, Cooley is a complex case. The Supreme Court is expected to make a ruling by the end of the current term in June.