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BOISE — The Ninth Circuit Court sided Tuesday with the Northwestern Band of the Shoshone Nation in the tribe's tribal hunting rights lawsuit against Idaho.
The tribe sued the state in 2021, arguing the Idaho Department of Fish and Game had wrongly denied the tribe's treaty rights when it cited two tribal members for hunting without tags.
The tribe appealed to the United States Court of Appeals for the Ninth Circuit after a district judge partially granted Idaho's motion to dismiss the case last year. Tuesday's decision reverses that dismissal and requires the district court to revisit the lawsuit.
The Northwestern Band of the Shoshone Nation Tribal Council said in a statement Wednesday it was disappointed by the initial dismissal and believes it was based on an erroneous reading of the treaty.
"The tribe is pleased with the opinion issued by the Ninth Circuit reversing the dismissal and the matter has been remanded to the District Court for further proceedings," the statement reads. "The tribe believes that the opinion is consistent with the 1868 treaty and is consistent with the position that the tribe has advanced for decades. The ruling allows the tribe to work with other tribes under the 1868 treaty and any states that have any of the tribe's aboriginal territory within their borders to preserve the rights for future generations of hunters and fishers."
The case centers on the 1868 Treaty of Fort Bridger, which was signed by multiple Shoshone and Bannock bands who ceded land in exchange for a promise of peace and reserved their right to hunt on unoccupied lands.
Idaho has argued that the Northwestern Band of the Shoshone Nation is not a treaty party and that only tribal members of the Fort Hall or Wind River Reservations have access to the hunting rights guaranteed by the treaty. In oral arguments, Idaho called the hunting rights "the carrot that induced the tribe to move to the reservation" and asserted the treaty was between the U.S. and the Eastern Shoshone and Bannock tribes, not the Northwestern Band.
Prior to colonization, the Shoshone homelands encompassed over 80 million acres in present-day Utah, Idaho, Colorado, Nevada and Wyoming. The Treaty of Fort Bridger was signed just five years after the Bear River Massacre, which decimated the Northwestern Band. Today, the Northwestern Band of the Shoshone Nation lives in northern Utah and southern Idaho. Although the tribe bought back several hundred acres of its ancestral land in 2018, it does not have a reservation.
In Tuesday's opinion, U.S. Circuit Judge Jennifer Sung disagreed with both Idaho and U.S. District Judge David Nye's interpretation of the treaty. The opinion stressed the Northwestern Band was represented by the main chief of the Shoshone and that the land the Shoshone ceded to the U.S. included the Northwestern Band's "favored" locations in southern Idaho and northern Utah.
"The treaty's terms, which must be read in context and construed as they would naturally be understood by the tribes, plainly do not condition exercise of the reserved hunting right on the Northwestern Band relocating to a reservation," Sung wrote. "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."
Both Utah and the federal government argued on the side of the tribe, with Utah stating it has "substantial interest" in the outcome of the case since many of the tribe's members live in Utah and assert hunting and fishing rights under the same treaty. In November, Utah signed a new hunting and fishing agreement with the tribe.
