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Tribal Hunting Student Files |
Do Tribal Off-Reservation Hunting and Fishing Rights Include the Right to Habitat Protection?
By Jess Brown
At NRLI/ELC’s first spring colloquia, this year’s NRLI fellow, Ed Goodman, discussed his year-long research on the Klamath Tribe and its struggle to ensure that the tribe’s off-reservation hunting and fishing rights are accompanied by actual fish and game. The Klamath Tribe, like most Native American tribes, has never been allowed an active role in the management of species’ habitat to ensure their continued existence and thus the preservation of actual off-reservation hunting and fishing.
Ever since the Klamath Tribe lost ownership over its historic hunting and fishing grounds, the land has been subject to the timber harvesting practices of the U.S. Forest Service. As a result, mule deer populations have plummeted and the tribe is seeking an active role in the protection of habitat to ensure that their hunting and fishing rights actually provide the tribe with mule deer, an essential staple for indigent tribal members. During his fellowship at the law school this year, Goodman is attempting to find a legal route for the Klamath Tribe to get the accompanying right of habitat preservation with their off-reservation hunting and fishing rights.
The Klamath Tribe originally had a treaty with the federal government that guaranteed the tribe a reservation of close to two million acres. The treaty also guaranteed other rights for the tribe, including the right to hunt and fish. Several subsequent federal actions shrunk and eventually eliminated the tribe’s land reservation. However, the tribe’s hunting and fishing rights survived the termination of the tribe’s reservation because the tribe was not compensated for their hunting and fishing rights.
The primary species that the tribe hunts is the mule deer. The tribe has had difficulties ensuring the existence of the mule deer, and their hunting rights, ever since they lost ownership of the hunting lands. The U.S. Forest Service now owns the tribe’s old reservation land. The Forest Service has severely logged the area, which has caused the mule deer population to significantly decline from 13 to 14 deer per mile to about seven deer per mile. The tribe is seeking to secure habitat protection to ensure that their hunting and fishing rights remain fruitful.
The tribe tried to influence the Forest Service’s timber practices by providing the Service with scientific data demonstrating the negative impacts of their practices on the mule deer. However, the Forest Service did not change its logging practices. Next, the tribe successfully got injunctions against several timber sales. However, this approach does not preserve the tribe’s continued right to habitat protection.
Several legal doctrines support the tribe’s right to habitat protection as an accompaniment of their off-reservation hunting and fishing rights. These doctrines include the United States’ trust obligation to tribes and court decisions accounting for changed circumstances while preserving tribal treaty rights to hunt and fish. The U.S.’s trust obligation to tribes has been interpreted as a fiduciary duty to the tribes of the highest moral character. This means that the U.S. government has a duty to protect tribal interests.
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Several Washington tribes have been granted the right to half of all fish catch via treaty language guaranteeing tribes the right to fish “in common with” the state’s citizens. The Klamath Tribe has also secured accompanying water rights sufficient to sustain the tribe’s off-reservation hunting and fishing. These concepts signify that tribes’ rights to hunt and fish actually grant the tribes a right to actual hunting and fishing. |
