Utah argues in favor of Northwestern Band of Shoshone hunting, fishing rights lawsuit in Idaho

SALT LAKE CITY — Utah recently threw its weight behind the Northwestern Band of Shoshone Nation's lawsuit against Idaho.

The tribe sued Idaho and two Fish and Game officials in June 2021 on the grounds that the state denied its right to hunt and fish on its ancestral lands as guaranteed by the 1868 Treaty of Fort Bridger. The lawsuit was sparked by Idaho Department of Fish and Game officials' decision to cite tribal members for hunting without tags.

The lawsuit is one of a series of tribal hunting and gather lawsuits currently playing out across the country, where tribes are turning to the judicial system to assert their treaty rights.

Utah filed an amicus brief in a court of appeals, stating the state has "substantial interest" in the outcome because many of the tribe's members live in Utah and assert hunting and fishing rights under the same treaty. In November, Utah reaffirmed those rights by signing a new hunting and fishing agreement with the tribe.

"Utah has a substantial interest in ensuring that tribal members living in Utah receive the benefits to which they are entitled under federal law and that federal treaties are implemented uniformly," the brief states. "The U.S. Supreme Court and the Ninth Circuit have recognized that when an Indian tribe enters into a treaty with the U.S., the relationship framework was not one in which the government granted rights to the tribe. Hunting and fishing rights, for example, were not for the government to give; tribes had been exercising those rights long before the existence of the U.S."

Idaho disagrees. Owen Moroney, Idaho deputy attorney general, argued that hunting rights were "the carrot that induced the tribe to move to the reservation" during arguments last week. The state has pointed out that the ancestors of today's Northwestern Band did not move onto those reservations and instead remained in southern Idaho and northern Utah.

Idaho also argues that the Northwestern Band of Shoshone Nation was not part of the treaty. At the time of the treaty, the Shoshone tribe consisted of about 14 bands. Idaho argues that the treaty was made with the Eastern Shoshone and Bannock.

Chief U.S. District Judge David Nye partially granted Idaho's motion to dismiss the case last year.

"It would make little sense for the government to grant hunting rights but not receive anything in exchange," Nye wrote. "Based on the plain language, it is unambiguous that the hunting rights were inextricably tied to the promise to live on the reservation, and a tribe cannot receive hunting rights without living on one of the appropriate reservations."

Northwestern Band argues that the dismissal of its case failed to consider both the federal government's objectives for the treaty as well as the tribes' understanding of the treaty.

"Findings made in prior litigation relating to the 1868 treaty indicate that the parties understood that the fundamental purposes of the treaty were to ensure peace between nations and to have the tribes cede their lands to the U.S. not to require settlement on reservations," states the tribe's brief. "The tribe and its members did not understand in 1868 that failing to relocate to a reservation would extinguish its hunting right."

Mary Sprague, representing the federal government, also argued in support of the tribe.

"The central point is that the band upheld their part of the deal," said Sprague, according to Courthouse News Service. "They ceded their land. They just kept the reserved hunting rights because they were starving and that was necessary for their livelihood. Now fortunately, the members of the band are not starving but still this is a very important part of their cultural identity that they ask to be allowed to continue. And there's nothing in the treaty that says they can't."

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