Tribal Hunting

Q: Why aren't tribal members required to follow the same state hunting regulations as non-tribal hunters?

A: Many of Washington's tribes signed treaties with the United States in the 1850s in which they "ceded" or gave up title to their lands but reserved the privilege of hunting on "open and unclaimed lands." Courts have ruled that under the treaty there is no difference between a privilege and a right. Each treaty tribe has the ability to set hunting regulations for its members. Federal treaties are recognized as the supreme law of the land under the U.S. Constitution and thus supersede most state laws and regulations. Only Congress can change the terms of a federal treaty.

Q: What are "open and unclaimed lands?"

A: The question of what land is "open and unclaimed" has not been completely resolved. Although there are important exceptions, most public lands are considered to be open and unclaimed, while the state contends that private lands are not. Compared to the more familiar treaty fishing right, treaty hunting rights have not yet received a great deal of attention in court. As a result, the nature and scope of treaty hunting rights still are being defined. Some of the questions about the scope of tribal hunting rights were addressed by state court rulings in the case of State v. Buchanan.

Q: What is the Buchanan decision and how does it affect tribal hunting rights?

A: In the case of State v. Buchanan, the state Supreme Court ruled that members of a Washington treaty tribe may hunt free of most state regulation on open and unclaimed lands within each tribe's aboriginal (traditional) hunting grounds. The Buchanan case arose from a January 1995, incident in which two members of the Nooksack Tribe traveled to eastern Washington where they shot and killed two bull elk in the Oak Creek Wildlife Area. Charges were brought against the tribal members, who defended on the grounds that they had a treaty right to hunt. The Yakima County Superior Court ruled that the tribe held a treaty right to hunt on open and unclaimed lands within the former Washington Territory and that the Oak Creek Wildlife Area, as state land open to hunting at certain times of the year, was "open and unclaimed" within the treaty meaning. The state Court of Appeals upheld the superior court ruling. The state Supreme Court heard an appeal of the Buchanan case in November 1998 and issued its ruling in June, 1999.

Q: How has the state Supreme Court's ruling affected tribal hunting practices?

A: In its ruling the Supreme Court decreed that the area where tribes have a right to hunt is determined by the historical hunting practices of the tribes. The court emphasized that this area would certainly include the lands ceded by a tribe under a treaty and could possibly include other areas if a tribe could prove that the area was used for hunting and occupied by the tribe over an extended period before the treaty was signed. The process of proving such traditional use for each of Washington's 26 treaty tribes could be long and complex.

Q: What percentage of elk are harvested by tribal hunters?

A: On a statewide basis, tribal harvest is considerably less than non-tribal harvest. In some areas, however, tribal and non-tribal harvest is comparable. Besides hunting, other factors such as habitat loss, road development, predation and past harsh winter weather have affected elk populations in some areas of the state.

Q: What is the Washington Department of Fish and Wildlife doing to work with tribes on hunting issues?

A: The Department of Fish and Wildlife (WDFW) is attempting cooperation with tribes on hunting issues, in an effort to preserve wildlife resources and future hunting opportunity. Department and treaty tribe representatives met for more than a year to draft a set of Department-Tribal Hunting Management Guidelines which would set up a process for improved information sharing on herd population estimates and harvest. Those draft guidelines, however, have not yet been approved by all the parties.

Following the state Supreme Court's ruling, WDFW and tribal representatives have met to explore the potential for a collaborative process to determine traditional hunting areas. Such as determination could be made through a jointly selected panel of historic experts or another administrative process or by the courts.

To guide its enforcement officers in the field WDFW has developed maps of tribal ceded areas (where each treaty tribe clearly has a right to hunt). The Department has shared these maps with tribes and county prosecutors. Following the state Supreme Court's ruling in the Buchanan case, WDFW and tribal representatives met to explore the potential for a collaborative process to determine ceded area boundaries that were in dispute. This cooperation led to an agreement between WDFW, county prosecutors and the four signatory tribes to the Medicine Creek Treaty to use independent mediators with technical expertise in geography and law to determine a useable southern boundary of the area ceded by the Medicine Creek tribes. Such a determination can be used by state and tribal managers to craft wildlife management plans and enforcement efforts. Besides the ceded area maps, WDFW has developed a set of guidelines for its enforcement officers who contact tribal members in the field. Among other things, the guidelines direct officers to share their reports with appropriate tribal and county legal authorities.

In the meantime, WDFW must continue its role of enforcing state hunting regulations which apply to non-tribal hunters statewide and to tribal hunters operating outside their proven ceded or traditional hunting grounds.