Tribal leaders say a legislative proposal to open some privately owned lands within Indian reservations in Montana to hunting is an attack on tribal sovereignty and certain to erode the tribes’ relationships with the state.
The House Fish, Wildlife and Parks Committee on Tuesday afternoon and evening heard testimony from about 40 supporters and opponents of House Bill 241, which would allow big game hunting on fee lands owned by non-tribal citizens within the boundaries of an Indian reservation. Taxable fee lands can be owned by tribal governments, tribal citizens, the state, or non-Indians. Rep. Joe Read, R-Ronan, sponsored the measure.
The measure would direct the Montana Fish & Wildlife Commission to repeal a nearly 70-year-old rule, which has been upheld by multiple court rulings, prohibiting non-Indians from big game hunting on fee lands, even if they own the property, within the boundaries of a Montana Indian reservation.
Supporters said the current rule unfairly prevents non-Indian landowners from hunting on their own property. Tribal leaders and other opponents, however, said the rule recognizes treaty rights meant to protect game populations for tribal citizens on reservations, which they said were never intended to be opened for ownership by non-Indians. Others said enacting the measure could lead to unintended consequences, like expensive lawsuits and tribal nations deciding to close tribally owned reservation land to hunting, fishing and recreation for non-Indians.
“This proposal would allow non-tribal members to hunt on fee lands within our reservation boundaries with state rather than tribal permits, something that I believe completely disrespects our rights and sovereignty to manage our own lands and resources,” testified Fort Peck Assiniboine and Sioux Tribes council member Jestin Dupree. “The U.S. government placed our tribes on plots of land no one else wanted. And if this bill is passed, we will progressively lose the right to what little we have left.”
During the more than two hour hearing on the proposal, several non-Indian Flathead Reservation landowners said it is unfair that they can’t hunt on land just because it is within the boundaries of a reservation. Other bill supporters said the measure could help increase land values and would allow landowners to contribute to managing big game populations and prevent them from over-grazing or otherwise negatively impacting the land.
“It’s truly just a private property ownership bill, and in no way, shape or form was it meant to infringe on tribal property, to usurp the rules and regulations that the tribe has over their lands,” said Read, whose district includes land on the Flathead Reservation. “Landowners should have that right to harvest game on their own private property.”
One of those landowners, Brendon Schoening, said he judged the state’s 2019 hunting regulations to be vaguely written enough to allow him to defensibly hunt on his property, which is within the boundaries of the Flathead Reservation. To test that theory, he killed a whitetail buck on his land, tagged it, informed a state game warden, and was cited for violating the rule.
“The decision to do this was very hard for me to make. I could have ruined my reputation and lost business because of it. My wife did not support my decision,” he said. “It’s not right to discriminate [against] me because I chose to live and own property within the boundaries of a reservation.”
Schoening said his case was eventually dismissed in district court. Read said the district court decision prompted him to sponsor the legislation.
HB 241 isn’t the first challenge to the on-reservation fee land hunting prohibition. In 2002, the Montana Supreme Court ruled in State v. Shook that the policy is legal. The U.S. Supreme Court declined to hear that case. Randy v. Roberts, a 2005 lawsuit challenging the rule in federal court, also failed.
“Both the Shook and the Roberts case found … that there is no constitutional right to hunt on fee land,” CSKT attorney John Carter testified. Carter, who was involved in the Shook case, added that the courts found “the state was perfectly entitled to enact the restrictions that it did.”
A federal policy, the Dawes Act, also known as the General Allotment Act of 1887, took reservation lands — without tribal consent — and divided them among individual tribal members to encourage farming, force assimilation and break up tribal governments. Surplus land not allocated to tribal members was opened to non-Indian settlement, with many tribal citizen allotments eventually ending up under non-Indian ownership.
For example, 54% of the Fort Peck Reservation’s 2.1 million acres are fee lands. On the Flathead Reservation, about one-third of its 1.3 million acres are fee lands.
Tribal leaders and others opposed to the proposal testified Feb. 9 that it would worsen a confusing jurisdictional maze for law enforcement and game wardens and lead to conflicts on reservations because land status and property boundaries are often unclear. They also said the bill would make game management more difficult and reduce big game populations for many tribal members who rely on subsistence hunting.
Read said he drafted the legislation without consulting any Montana tribal nations, members of the Legislature’s American Indian Caucus or members of the Interim State-Tribal Relations Committee.
Evan Thompson, the Blackfeet Tribe’s general counsel, said the bill would open the “floodgates of litigation,” and that a better approach would be to first study the issue and include input from Montana tribes.
Some groups, like Pheasants Forever and the Montana chapter of Backcountry Hunters and Anglers, said the legislation, could actually decrease non-Indian access to reservation lands for hunting, recreation and fishing because tribes may decide to stop permitting the use of tribally owned land or end agreements allowing bird hunting or fishing on reservations. The Montana Wilderness Association and Trout Unlimited also opposed the proposal.
“It’s simply not worth destroying what has been working for decades for all other Montanans and our tribal people on our treaty-reserved homelands in order to benefit a few landowners who choose to live on an Indian Reservation,” testified Shelly Fyant, chairwoman of the Confederated Salish and Kootenai Tribes.
The committee took no action on the proposal Tuesday.
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