Amicus Curiae Brief — Herrera v. Wyoming, 138 S. Ct. 720 (2018) (No. 17-532)

No. 17-532

IN THE

Supreme Court of the United States

CLAYVIN B. HERRERA,

Petitioner,

v.

STATE OF WYOMING,

Respondent.

On Writ of Certiorari to the

District Court of Wyoming,

Sheridan County

BRIEF OF AMICUS CURIAE

SHOSHONE-BANNOCK TRIBES OF THE

FORT HALL RESERVATION

IN SUPPORT OF PETITIONER

DOUGLAS B. L. ENDRESON WILLIAM F. BACON

ANNE D. Noto Counsel of Record

FRANK S. HOLLEMAN, IV MONTE GRAY

SONOSKY, CHAMBERS, SHOSHONE-BANNOCK TRIBES

SACHSE, ENDRESON 306 Pima Dr.

& PERRY, LLP Fort Hall, [ID 83203

1425 K St., N.W. Suite 600 (208) 478-3822

Washington, DC 20005 bbacon@sbtribes.com

(202) 682-0240

Counsel for Amicus Curiae

September 11, 2018

Wiison-EPes Printinc Co. inc — (202) 789-0086 - WasnaTon,D C 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............ccccccseceeeeeeees

INTEREST OF AMICUS CURIAE................000.

STATEMENT OF FACTS ............c::secsseeeessseeeeees

SUMMARY OF ARGUMENT ......00.....cccccceees

IV.

RACE HORSE AROSE FROM THE

MURDER OF BANNOCK INDIANS BY

SETTLERS, NOT FROM A CONFLICT

BETWEEN THE INDIANS’ TREATY

RIGHTS AND STATE CONSERVATION

THE MILLE LACS DECISION ESTAB-

LISHES RACE HORSE HAS NO

CONTINUING LEGAL FORCE ..............

APPLYING THE RULES OF TREATY

CONSTRUCTION SET FORTH IN

MILLE LACS CONFIRMS THAT THE

TRIBES RETAIN THEIR RIGHTS

UNDER ARTICLE 4 OF THE 1868

THE TRIBES EXERCISE ' CO-

MANAGEMENT OF THEIR OFF-

RESERVATION TREATY HUNTING

aa w -

10

16

18

i

TABLE OF AUTHORITIES

CASES

Antoine v. Washington,

420 U.S. 194 (1975)...........ccccceceereeees

Brown v. Bd. of Educ.,

347 U.S. 483 (1964)...........ccccccecceereees

Choctaw Nation v. Oklahoma,

397 U.S. 620 (1970).........ccc0ceeseereeesees

Choctaw Nation v. United States,

318 U.S. 423 (1943)..........cccceceeeeeeees

Geer v. Connecticut

161 U.S. 519 (1896) .occcccccccscsscsossesssse

Kleppe v. New Mexico,

426 U.S. 529 (1976)...........c.0ccseeeceees

Menominee Tribe v. United States,

391 U.S. 404 (1968)............cccecsseeeeees

Minnesota v. Mille Lacs Band of

Chippewa Indians,

526 U.S. 172 (1999)............ccccccereereees

Missouri v. Holland,

252 U.S. 416 (1920).............cccccseeeeees

v. Ferguson,

163 U.S. 537 (1896)...............ccccccceee

Puyallup Tribe v. Dep't of Game,

391 U.S. 392 (1968)...........ccccccceeees

Seufert Bros. Co. v. United States,

249 U.S. 194 (1919)..........0cccesseeeeees

Shoshone-Bannock Tribes v.

Fish & Game Comm'n,

452 F.3d 1278 (9th Cir. 1994)...........

eee eeee

iii

TABLE OF AUTHORITIES—Continued

Page(s)

State v. Arthur,

261 P.2d 135 (Idaho 1953)..................ccccceeeee 25

State v. Cutler,

708 P.2d 853 (Idaho 1985)....................0.. 19

State v. Holtry,

559 P.2d 756 (Idaho 1977)..................00 19

State v. Lewis,

536 P.2d 738 (Idaho 1975).................06 19

State v. McCoy,

387 P.2d 942 (Wash. 1963) ...................... 25

State v. Tinno,

497 P.2d 1386 (Idaho 1972)..................... passim

Tulee v. Washington,

ED cosccsccscciccsessanscvsevesentene 25

United States v. Dion,

CN 6, 16

United States v. Forty-Three

Gallons of Whiskey,

LL 17

United States v. Shoshone Tribe,

GS 4, 21, 23

United States v. Winans,

ES 17, 19, 25

Ward v. Race Horse,

ee ee i ciccensccnccesuscsccscsscncncenes passim

Washington v. Wash. State Commercial

Fishing Vessel Ass'n,

443 U.S. 658 (1979).........0.cccecceeeeees 8, 16, 17, 19

iv

TABLE OF AUTHORITIES—Continued

CONSTITUTION Page(s)

oF eo eS YS eee 17

TREATIES

Treaty with the Eastern Shoshoni, art. IV,

July 2, 1863, 18 Stat. 686.000.0000... 4

Treaty with the Western Shoshoni, art. V,

Oct. 1, 1863, 18 Stat. 690..............00000000000. 4

Treaty of Soda Springs, Oct. 14, 1863

(unratified), reprinted in V Indian

Affairs, Law and Treaties (Charles J.

EE ee 4

Treaty of Fort Boise, Oct. 10, 1864

rte cctinteireninicieatntmediendteies tc 4, 20

Caleb Lyon’s Bruneau Treaty, Apr. 12,

ST achcinesiciichteniadinsniedasnbitins 4, 20

Treaty with the Crow Indians, art. 4, May

2 § 8 SE SES ae 2

Treaty of Fort Bridger, July 3, 1868, 15

BI ee anctscaliasdaiatinitionnniesisicnnsnslaste tee passim

COTE, i, Ba ee crncovnussatensenssnnnaciniohabintan 13, 21

OE Ee a cdrctisctinnsicciieetnctiidienin 1,5

art. 4, 15 Stat. 674-675 ..............ccccccecseee passim

STATUTES AND EXECUTIVE ORDERS

Wyoming Admission Act of July 10, 1890,

Ge, GRR, BB RG, GI ncccsccccccvcsecccseccccoces 2, 16,17

Vv

TABLE OF AUTHORITIES—Continued

Page(s)

Exec. Order of President Andrew Johnson

(June 14, 1867), reprinted in | Indian

Affairs, Law and Treaties (Charles J.

Exec. Order of President Ulysses Grant

(July 30, 1869), reprinted in 1 Indian

Affairs, Law and Treaties (Charlies J.

TRIBAL LAWS AND INTERGOVERNMENTAL

AGREEMENTS

Shoshone-Bannock Tribes:

Tribal Law & Order Code ch. XVI1............ 26

Fish & Game Comm'n, 2018-2019 Big

Game Hunting Regulations (2018)........... 26, 27

BPA, Adm’rs Record of Decision, 2008

Columbia Basin Fish Accords Memo. of

Agreement with Shoshone-Bannock

ES 28

BPA, Adm’r’s Record of Decision & Resp. to

Comments, S. Idaho Wildlife Mitigation

Memo. of Agreement (2014), available at

Wildlife-Mitigation-Memorandum-of-Agr

Ee 28

Memo. of Agreement between Nat'l Elk

Refuge & Shoshone-Bannock Tribes

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Southern Idaho Wildlife Mitigation

Agreement, BPA & Shoshone-Bannock

SI setenensensencenssscnsnzsnpesennennianenenes 27

STATE CONSTITUTION

a 19

COURT FILINGS

Br. of United States, Amicus Curiae, State

v. Tinno, 497 P.2d 1386 (Idaho 1972) (No.

OTHER AUTHORITIES: HISTORICAL RECORDS

Annual Report of the Secretary of the Interior

(1895), reprinted in Message from the

President to the Two Houses of Congress

(1896), available at https://babel.hathi

trust.org/cgi/pt?id=mdp.390 1508753686 1

View =2up;80G=6...............cccccccereseeseesees 13, 14, 15

Annual Report of the Secretary of the

Interior (1896), reprinted in Message

from the President to the Two Houses of

Congress (1897), available at https://bab

el .hathitrust.org/cgi/pt?id=mdp.390 1508

7536853 ;view=lup;seq=10........................ 15

Jail Record of Uinta County Wyoming

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Letter from Caleb Lyon, Governor & ex

officio Superintendent of Indian Affairs,

Idaho Territory, to Sec’y of Interior (Apr.

16, 1866), microfilm at Nat'l Archives &

Records Admin., Microcopy T-474, Roll 9...

Letter from Caleb Lyon, Governor & ex

officio Superintendent of Indian Affairs,

Idaho Territory, to Sec’y of Interior (Oct.

20, 1864), microfilm at Nat'l Archives &

Records Admin., Microcopy 234, Roll 337

Letter from D.W. Ballard, Governor & ex

officio Superintendent of Indian Affairs,

Idaho Territory, to Comm’r of Indian

Affairs (June 30, 1867), microfilm at

Letter from Thomas Teter, Indian Agent,

Fort Hall Agency, to Comm’r of Indian

Affairs (Oct. 10, 1895), available at

Nat'l Archives & Records Admin., Record

Grp. 75, Entry 91, Letters Received, Box

Siri hcsscnchinicstosensiceniesedeniscinitehiinanesnaaiaaiaiataatiediegiatensien

Report from C.C. Augur, Brevet Major-

Gen., to President, Indian Peace Comm’n

(Oct. 4, 1868), reprinted in Papers

Relating to Talks and Councils Held with

the Indians in Dakota and Montana

Territories in the Years 1866-1869 (GPO

4, 20

4, 20

TABLE OF AUTHORITIES—Continued

Page(s)

Report from Province McCormick, Indian

Inspector, to Sec’y of Interior (Oct. 6,

1895), available at Nat'l Archives &

Records Admin., Record Grp. 75, Entry

90, Letters Received, Box 1249 ................ 15

U.S. Dep’t of Interior, Annual Report of the

Commissioner of Indian Affairs to the

Secretary of the Interior (1895) reprinted

in H.R. Doc. No. 5 Report of the Secretary

of Interior to Congress (1896), available

at http://digicoll.library.wisc.edu/cgi-bin/

History/History-idx?type=browse&scope

=HISTORY.COMMREP .....00... eee passim

William Clark & Meriwether Lewis, The

Journals of Lewis and Clark (Bernard

DeVoto, ed., Amazon Kindle 2016)........... 3

INTEREST OF AMICUS CURIAE'

The amicus curiae Shoshone-Bannock Tribes

(“Tribes”) is a federally recognized Indian tribe, 83

Fed. Reg. 4235, 4238 (Jan. 30, 2018), occupying the

Fort Hall Reservation in Idaho, pursuant to the Treaty

of Fort Bridger, art. 2, July 3, 1868, 15 Stat. 673 (“Fort

Bridger Treaty” or “1868 Treaty”), and companion

executive orders,’ and exercising rights to hunt, fish,

and gather on unoccupied lands of the United States

pursuant to Article 4 of the 1868 Treaty.’ See State v.

Tinno, 497 P.2d 1386, 1389-91 (Idaho 1972). The

Tribes’ interest in this case arises from the reliance

that the court below placed on Ward v. Race Horse, 163

U.S. 504 (1896), in ruling that Wyoming’s statehood

extinguished the Crow Tribe’s off-reservation treaty

‘ Pursuant to Rule 37.6 of the Rules of this Court, counsel for

Amicus states no counsel for a party authored this brief in whole

or in part, and no person or entity other than Amicus and its

counsel made any monetary contribution to the preparation or

submission of this brief. Petitioner and Respondent have

consented to the filing of amnicus curiae briefs in letters filed with

the Clerk.

* The Reservation was first set aside by an 1867 Executive

Order. Executive Order of President Andrew Johnson (June 14,

1867), reprinted in | Indian Affairs, Law and Treaties 836-37

(Charles J. Kappler ed., 1904) (“Kappler”). The provisions of the

1868 Treaty promising the Reservation to the Tribes were then

implemented by an 1869 Executive Order. Executive Order of

President Ulysses Grant (July 30, 1869), reprinted in | Kappler

at 838-39.

® Article 4 provides the Shoshone-Bannock Tribes “shal! have

the right to hunt on the unoccupied lands of the United States so

long as game may be found thereon, and as long as peace subsists

among the whites and Indians on the borders of the hunting

districts.” 1868 Treaty art. 4.

2

right.* See Pet. App. 31-34. Race Horse was effectively

overruled by this Court in Minnesota v. Mille Lacs

Band of Chippewa Indians, 526 U.S. 172, 202-08

(1999), and as the Tribes’ off-reservation hunting

rights in Wyoming*® were put at issue in Race Horse,

the Tribes are keenly interested in the proper

application of Mille Lacs. The Tribes submit this brief

to show that Race Horse was overruled in Mille Lacs,

and that the historical record confirms that Race

Horse was wrongly decided. First, Race Horse did not

arise from a conflict between off-reservation treaty

rights to hunt and the conservation of natural

resources by the State. It instead arose from the

murder of Bannock Indians by a posse of non-Indians,

led by the local constable, who sought to keep the

Indians from hunting in the Jackson Hole country to

protect business interests of local hunting guides. As

federal officials later found, the non-Indians had

“a premeditated and pre-arranged plan to kill some

Indians and thus stir up sufficient trouble to

subsequently get United States troops into the region

and ultimately have the Indians shut out from

Jackson Hole. The plan was successfully carried out

and the desired results obtained.” Treaty rights

* The Crow Tribe’s off-reservation rights are set out in Article

4 of the Treaty of May 7, 1868, 15 Stat. 649. Pet. App. 34.

° Race Horse addressed the effect of Wyoming’s admission to

statehood on the off-reservation hunting rights held under the

Fort Bridger Treaty within the state of Wyoming, Race Horse, 163

U.S. at 507 (sole question presented concerns the treaty right to

hunt “within the limits of the State of Wyoming”); id. at 514

(concluding the treaty right was repealed by the Wyoming

admission act “in so far as the lands in [the hunting] districts are

now embraced within the limits of the state of Wyoming”).

* U.S. Dep't of Interior, Annual Report of the Commissioner of

Indian Affairs to the Secretary of the Interior 77 (1895) (“1895

3

to hunt, fish, and gather off-reservation are not

irreconcilable with state sovereignty over natural

resources, Mille Lacs, 526 U.S. at 204, and the bare

resistance to those rights that led to Race Horse

furnishes no basis for their denial. Second, when the

Fort Bridger Treaty is interpreted in conformance

with the rules of treaty construction set forth in Mille

Lacs, 526 U.S. at 196, 200, it is clear that Article 4 of

the 1868 Treaty was intended to secure to the Tribes

the right to hunt, fish, and gather on unoccupied lands

of the United States in Wyoming, as elsewhere, for as

long as game is to be found on those lands.

STATEMENT OF FACTS

For generations, the Shoshone and Bannock Indians

migrated widely to obtain subsistence resources. See

William Clark & Meriwether Lewis, The Journals of

Lewis and Clark 1384 (Bernard DeVoto ed., Amazon

Kindle 2016) (entry for Aug. 19, 1805). The Tribes

negotiated treaties with the United States throughout

the mid-19th century, and their reliance on hunting,

fishing, and gathering was well-known to the United

States as a result of those negotiations. In the mid-

1860s, the United States and the Tribes negotiated a

series of treaties securing tribal hunting, fishing, and

gathering rights over a large area. In 1863, the United

States negotiated three treaties—two of which were

ratified—which established a reservation of over 44

million acres for the Eastern Shoshone, see Treaty

ARCIA”) (quoting Report of U.S. Att’y for Wyo.). The Annual

Reports of the Commissioner of Indian Affairs were reprinted in

the Secretary of the Interior’s Annual Reports to Congress, which

were printed as House Documents in the following year. See H.R.

Doc. No. 5 (1896) (reprinting 1895 ARCIA). They are also

available at http-//digicoll library.wisc.edu/cgi-bin/History/Histo v-

idx?type=browse&scope=HISTORY.COMM REP.

4

with the Eastern Shoshoni, art. [V, July 2, 1863, 18

Stat. 685; United States v. Shoshone Tribe, 304 U.S.

111, 113 (1938), and recognized the expansive

territories of other Shoshone and Bannock Bands,

Treaty with the Western Shoshoni, art. V, Oct. 1, 1863,

18 Stat. 689; Treaty of Soda Springs, Oct. 14, 1863

(unratified), reprinted in V Kappler at 693. After

1863, Shoshone bands negotiated two other unratified

treaties that ceded lands to the United States and

reserved tribal fishing rights in the ceded lands.

Treaty of Fort Boise, Oct. 10, 1864 (unratified);’ Caleb

Lyon’s Bruneau Treaty, Apr. 12, 1866 (unratified).°

And in 1867, when President Andrew Johnson

established the Fort Hall Reservation for the

Bannocks and Shoshone by Executive Order, see

Executive Order of June 14, 1867, the Bannock chiefs

informed the United States they would only move

there if they could leave it to hunt and fish.”

In 1868, the United States and the Tribes negotiated

the Fort Bridger Treaty. During the negotiations, the

lead U.S. negotiator explained the new reservation

would be the Indians’ permanent home, but they

would have “permission to hunt wherever you can find

' Enclosed with Letter from Caleb Lyon, Governor & ex officio

Superintendent of Indian Affairs, Idaho Territory, to Sec’y of

Interior (Oct. 20, 1864), microfilm at Nat'l Archives & Records

Admin. (“NARA”), Microcopy 234, Roll 337.

* Enclosed with Letter from Caleb Lyon, Governor & ex officio

Superintendent of Indian Affairs, Idaho Territory, to Sec'y of

Interior (Apr. 16, 1866), microfilm at NARA, Microcopy T-474,

Roll 9 (“1866 Lyon Letter”).

* Letter from D.W. Ballard, Governor & ex officio Super-

intendent of Indian Affairs, Idaho Territory, to Comm'r of Indian

Affairs (June 30, 1867), microfilm at NARA, Microcopy 234, Roll

337 (“1867 Ballard Letter”).

5

game.” Report from C.C. Augur, Brevet Major-Gen.,

to President, Indian Peace Comm'n (Oct. 4, 1868),

reprinted in Papers Relating to Talks and Councils

Held with the Indians in Dakota and Montana

Territories in the Years 1866-1869 116 (GPO 1910)

(“Augur Report”), The Shoshone Chief Washakie

responded he wanted a reservation on the Wind River

but also “the privilege of going over the mountains to

hunt where I please,” and Bannock Chief Taghee

stated “as far away as Virginia City |Montana] our

tribe has roamed. But I want the Porte-Neuf country

and the Kamas Plains” for the Bannock Reservation.

Id. at 117-18. These negotiations resulted in the

Treaty of Fort Bridger, in which the Tribes ceded the

1863 Treaty reservation in exchange for new reserva-

tions in Wyoming and Idaho, art. 2, while reserving

the right, off-reservation, “to hunt on the unoccupied

lands of the United States so long as game may be

found thereon, and as long as peace subsists among

whites and Indians on the borders of the hunting

districts,” id. art. 4.

SUMMARY OF ARGUMENT

The murder of Bannock Indians, not the killing of

elk, led to the Race Horse case. On July 15, 1895, a

party of Bannock Indians and their families were

hunting for subsistence purposes in the area known as

the Jackson Hole country, Wyoming when they were

surrounded by a posse of settlers led by the local con-

stable. The Indians were disarmed, and marched under

guard. When the Indians fled because they believed

they were to be killed, the settlers shot at the Indians.

Two Indians, an elderly blind man and an infant, were

killed as a result of the attack. The settlers sought to

keep the Indians from hunting in that area to protect

business interests of local hunting guides and initiated

the confrontation to get the Indians’ rights before the

courts. As the local constable stated: “We knew very

well when we started in on this thing that we would

bring matters to a head. We knew someone was going

to be killed, perhaps some on both sides, and we

decided the sooner it was done the better, so that we

could get the matter before the courts.” 1895 ARCIA

at 76. The killers were never prosecuted. Instead, the

settlers’ opposition to the Indians’ rights resulted in

the Race Horse case being brought.

This history shows “Race Horse rested on a false

premise” not only because off-reservation treaty rights

to hunt, fish, and gather are not irreconcilable with

state sovereignty over natural resources, Mille Lacs,

526 U.S. at 204, but also as a matter of fact.

Resistance to federal rights was the source of the

conflict in Race Horse, which provides an additional

reason for overruling that decision. This Court did so

in Mille Lacs by reaffirming that to abrogate an Indian

treaty right, “|Congress|} must clearly express its

intent to do so,” Mille Lacs, 526 U.S. at 202 (citing

United States v. Dion, 476 U.S. 734, 738-40 (1986)); by

holding that a state’s admission to the Union on an

equal footing does not abrogate treaty rights to hunt,

fish, and gather off-reservation because those rights

are not irreconcilable with state sovereignty, Mille

Lacs, 526 U.S. at 203-06; and by making clear that

when a treaty “itself defines circumstances under

which the rights terminate,” and those defined

circumstances do not include “when a State was

established in the area,” the rights are intended to and

do survive statehood. /d. at 206-07. Finally “|tjreaty

rights are not impliedly terminated upon statehood.”

Id. at 207. The “Race Horse Court’s decision to the

contrary” is no longer the law, as it was informed by

that Court’s conclusion that Indian treaty rights are

7

inconsistent with state sovereignty and thus could not

have been intended to survive statehood. /d. at 207-

08. Accordingly, the court below erred, and its decision

should be reversed.

The Mille Lacs Court also made clear that “we

interpret Indian treaties to give effect to the terms as

the Indians themselves would have understood them,”

id. at 196 (citations omitted), and that “Indian treaties

are to be interpreted liberally in favor of the Indians,

and... any ambiguities are to be resolved in their

favor.” Id. at 200 (citations omitted). When Article 4

of the 1868 Treaty is so interpreted, it confirms that

the Tribes retain their right to hunt, fish, and gather

on unoccupied lands of the United States in Wyoming,

as they do in Idaho under the ruling of the Idaho

Supreme Court in Tinno."®

I. RACE HORSE AROSE FROM THE

MURDER OF BANNOCK INDIANS BY

SETTLERS, NOT FROM A CONFLICT

BETWEEN THE INDIANS’ TREATY

RIGHTS AND STATE CONSERVATION

INTERESTS.

Race Horse did not arise from the killing of elk by

Indians; but from the actions of settlers who got away

with murder. Non-Indian settlers determined to deny

the Indians their federal rights killed Bannock

Indians to get their opposition to those rights to

” The Tribes also join Petitioner's argument that Mille Lacs

overruled Race Horse, Pet. Br. at 23-32, and his argument that

the creation of the Big Horn National Forest did not terminate

Treaty off-reservation hunting rights, id. at 32-40, as well as the

argument of Amici Curiae Natural Resource Law Professors on

the latter issue.

8

court. Thus, “Race Horse rested on a false premise”

not only because off-reservation treaty rights are not

irreconcilable with state sovereignty over natura!

resources as a matter of law, Mille Lacs, 526 U.S. at

204, but also as a matter of fact. Resistance to federal

rights does not justify their denial, which provides an

additional reason for rejecting Race Horse. See

Washington v. Wash. State Commercial Passenger

Fishing Vessel Ass'n, 443 U.S. 658, 694-96 & n.36

(1979) (federal court has power to order remedial

action necessary to protect treaty fishing rights);

Brown v. Bd. of Educ., 347 U.S. 483, 493-95 (1954)

(overruling Plessy v. Ferguson, 163 U.S. 537 (1896)).

The facts that led to the Race Horse case, as shown

by the federal government's investigation of the

incident, are as follows.

A. The Murders

On July 17, 1895, Governor Richards of Wyoming

informed the Interior Department that nine Bannock

Indians from Fort Hall had been arrested for illegally

killing game, one had been killed, and the others had

escaped. 1895 ARCIA at 63 (quoting Telegram from

William Richards, Governor, Idaho Territory, to Dep't

of Interior (Jul. 17, 1895) (quoting Telegram from

Frank H. Rhodes, Justice of Peace, et al., to William

Richards, Governor, Idaho Territory (n.d.))). The same

day, the Commissioner of Indian Affairs directed the

Fort Hall and Shoshone Indian agents to go to the

scene to prevent further conflict and to have the

Indians return to their respective Reservations. /d. at

63-64. The Fort Hall agent reported that the Sheriff

who investigated the conflict had said the Indians had

not molested the settlers. Jd. at 64.

9

The Commissioner subsequently received several

official reports on the incident. The Indian agents for

the Fort Hall Agency reported that the Bannock and

Shoshone Indians hunted “for sustenance,” id. at 66

(quoting Report of Captain Van Orsdale, Acting Indian

Agent (July 20, 1895)), had been hunting in the

Jackson Hole country for many years, and that objec-

tions had arisen “only since the business of guiding

tourists in search of big game has become so remu-

nerative.” Id. at 67 (quoting Report of Thomas Teter,

Indian Agent, Fort Hall Agency (Jul. 24, 1895)). Agent

Teter also reported the Indian account of the incident,

as follows: A hunting party of nine Indians and their

families were encamped on a stream in Uinta County

when they were surrounded by twenty-seven armed

settlers. The Indians were disarmed, the men were

placed in one group, their families in another, both

under guard. “The Indians, roughly treated, were

driven throughout the day they knew not where, and

as evening closed in the party approached a dense

wood, upon which the leader of the settlers spoke to

his men, and they examined their arms, loading al!

empty chambers.” /d. at 68 (quoting Report of Thomas

Teter, Indian Agent, Fort Hall Agency (Aug. 7, 1895)).

The Indians, believing they were to be killed, “made

a break for liberty; whereupon the settlers without

warning opened fire, the Indians seeing two of their

number drop from their horses.” Jd. The following

morning, the Indians gathered together and found

they were missing two men and two infants. They

revisited the scene, but could not find the missing

persons or their belongings. They then returned to the

Reservation. Jd. One of the men believed to have been

killed had been found. “He had been shot through the

body from the back” and had “subsistied] for seventeen

days upon the food which he had in his wallet at the

10

time he was shot.” Jd. The body of another Indian,

who had also been shot in the back, was later

discovered and buried by Indian scouts. One of the two

infants was found alive, and the other, only six months

old, was not found and was presumed to have died. /d.

The Commissioner concluded that the Bannocks

“have, in the opinion of this office, been made the

victims of a planned Indian outbreak by the lawless

whites infesting the Jacksons Hole country with

the idea of causing their extermination or their

removal from that neighborhood.” Jd. at 70. The

Commissioner had referred the incident to the

Department of Justice, and reported that the Attorney

General had responded he was not aware of any law

under which the Department of Justice could assist in

“punishing, civilly or criminally, the persons who have

done them injury, even the murderers.” Id. at 74-75.

On August 30, the Acting Attorney General restated

this conclusion. Jd. at 75.

B. The Conspiracy

The Acting Attorney General also provided to the

Commissioner the United States Attorney’s report on

the incident. The United States Attorney reported

that professional guides viewed Indian hunting in the

Jackson Hole country as a threat to their businesses.

They “decided at the close of last season to keep the

Indians out of the region this year, and the events of

this summer are the results of carefully prepared

plans.” Id. at 76. “Constable Manning said: ‘We knew

very well when we started in on this thing that we

would bring matters to a head. We knew some one was

going to be killed, perhaps some on both sides, and we

decided the sooner it was done the better, so that we

could get the matter before the courts.” Jd. The

11

United States Attorney found that the agreed-upon

plan was executed as follows:

Constable Manning and 26 deputies sur-

rounded a camp of 10 bucks and 13 squaws at

night, and early in the morning with guns

leveled at the Indians made the arrest, the

Indians offering no resistance. The arrest

was made on Fall River, 55 miles from

Marysvale. The warrant was for Bannock and

Shoshone Indians, the names and number of

the Indians to be arrested not being stated.

After the arrest was made, the arms, meat,

and other articles in the possession of the

Indians were taken from them. Constable

Manning also took their passes, ration checks,

etc. These papers gave the names and

residences of most of the Indians. From an

interview with Nemits, an Indian boy, who

was one of the party of Indians arrested and

shot, and from interviews with several of Mr.

Manning’s posse, I learned that the constable

and his men told the Indians some of them

would be hung and some would be sent to jail

and that this was believed by the Indians.

The constable also said in the hearing of the

Indians, some of whom understood English,

that if the Indians attempted to escape the

men should shoot their horses.

They believed the threats of being sent to jail

and of being hung were true, and they saw no

trick in Manning’s instructions, given in their

hearing, to shoot their horses if they tried to

get away.

12

* * ¢

From Mr. Manning I learned that none of the

horses of the escaping party of Indians were

shot, notwithstanding his order, but that at

least six Indians were hit by bullets. Of these,

Timeha, an old man, was killed; Nimits, a boy

of about 20, was wounded so that he could not

escape, and the others got away. Constable

Manning said to me: “The old Indian was

killed about 200 yards from the trail. He was

shot in the back and bled to death. He would

have been acquitted had he come in and stood

his trial, for he was an old man, almost blind,

and his gun was not fit to kill anything.”

When the body of this old, sick, blind man was

found after lying unburied in the woods for

about twenty days it was found he had been

shot four times in the back. The boy, Nemits,

who was wounded, was shot through the body

and arm. He was left on the ground where

the shooting occurred, and remained there,

living on some dried meat for ten days. He

crawled for three nights to reach a ranch of a

man friendly to Indians, and was seventeen

days without medical attendance.

Id. at 76-77. The United States Attorney concluded as

follows:

The whole affair was, I believe, a premedi-

tated and prearranged plan to kill some

Indians and thus stir up sufficient trouble to

subsequently get United States troops into

the region and ultimately have the Indians

shut out from Jacksons Hole. The plan was

13

successfully carried out and the desired

results obtained.

Id. at 77.

The Commissioner subsequently directed Agent Teter

to obtain evidence of the incident at Jackson Hole. /d.

at 78 (quoting 1868 Treaty, art. 1 (authorizing the

arrest and punishment of “bad men among the whites”

for “any wrong upon the person or property of the

Indians” “upon proof made to the agent and forwarded

to the Commissioner.”)). That evidence was provided

in two affidavits. The first recounted that the

Wyoming Governor had agreed to protect the justice of

the peace who issued the arrest warrants for Bannocks

hunting in Wyoming if trouble with the United States

arose from the Bannocks’ arrest. Jd. at 78-79 (quoting

Aff. of Ravenal Macbeth (Sept. 3, 1895)). The second

affidavit recited the facts of the incident. /d. at 79

(quoting Aff. of Ben Senowin (Sept. 1, 1895)). Agent

Teter also furnished the names of the men who

committed the assault. Jd. at 80. The Commissioner

requested the United States take action under Article

1 of the 1868 Treaty to arrest and punish the offenders

under federal law. Id.

The Secretary of the Interior reported on this matter

to the President. See Annual Report of the Secretary

of the Interior (1895), reprinted in Message from the

President to the Two Houses of Congress 677 (1896)."'

His report recognized the Tribes’ right to hunt on

unoccupied lands of the United States 'inder Article 4

of the 1868 Treaty, stated that they had for many

years gone “to the Jackson’s Hole country to hunt

game for subsistence,” id. at 686-87, and summarized

" Available at https://babel.hathitrust.org/cgi/pt?id=mdp.390

1508753686 1 ;view=2up;seq=6.

14

the facts of the incident, id. 687-88. The Secretary

further reported “the Department of Justice had ‘again

taken under consideration the question of prosecuting

the whites who committed the outrages upon the

Indians in the Jacksons Hole country,’ and the United

States attorney for Wyoming had been instructed to

indict the parties and prosecute the case with vigor.”

Id. at 688 (quoting Message from Att’y Gen. (Sept. 24,

1895)).

The Secretary also said the Department had

instructed Province McCormick, an Inspector for the

United States Indian Service, to meet with the

Governor of Wyoming. If the Governor would not

agree to recognize the Indians’ treaty rights, the

Inspector was to propose that the Indians’ rights be

determined by having an Indian arrested and charged

in state court, after which the United States Attorney

would seek the Indian’s release by writ of habeas

corpus in Wyoming federal court. Jd. at 688-89. If the

Governor agreed to that proposal, the Inspector was to

“secure the arrest of an Indian through the Fort Hall

agent,” notify the Department, and call a council with

the Indians at Fort Hall to explain the action taken by

the Department. The Secretary further reported that:

the Governor had agreed to the proposal; two Indians

were arrested and taken to Evanston, Wyoming,

“under the charge of the Indian agent” and an inter-

preter,” a council with the Indians was held and “they

“@ The Indians were not made aware of their arrest. Agent

Teter accompanied Race Horse and another Bannock Indian to

Evanston and reported “the Indians, though in the custody of the

Sheriff, are not aware of the fact of their arrest and, it is my

intention to keep them in ignorance, owing to the bad effect it

would have upon the Indians on the reservation.” Letter from

Thomas Teter, Indian Agent, Fort Hall Agency, to "r of

Indian Affairs (Oct. 10, 1895), available at NARA, Record Grp.

15

all agreed to rely implicitly upon the Government to

redress their wrongs—pledging themselves to abstain

from any attempts at revenge for the outrages

committed upon their people;”” the Indians’ release

was sought on writs of habeas corpus; and the federal

court had “held the laws of Wyoming invalid against

the Indians’ treaty.” Id. at 689.

In his 1896 report to the President, the Secretary

described this Court’s decision in Race Horse, and

reported the Attorney General had determined “there

was no statute of the United States under which any

assistance could be afforded” to address the killing

of Bannock Indians hunting in the Jackson Hole

country. Annual Report of the Secretary of the Interior

(1896), reprinted in Message from the President to the

Two Houses of Congress 829 (1897)."* No state or

75, Entry 91, Letters Received, Box 1248. It is unknown how

Agent Teter accomplished this. The certified copies of the jail

records do not indicate Race Horse or any other Indians were

incarcerated in that jail at the relevant times. See Jail Record of

Uinta County Wyoming 58-61 (1895), enclosed with Letter from

Doug Matthews, Sheriff, Uinta Cnty. (July 2, 2018).

'® The Shoshone and Bannock Indians were not told that would

be the federal government’s only response to the killings.

Furthermore, Inspector McCormick told the Secretary while he

was confident the Treaty rights would be upheld by the courts, he

was equally confident the non-Indians in the region would never

abide by a court ruling because they were lawless and reckless

and of the view that “shooting down defenseless Indians is a

greater source of revenue in the end than the tilling of the soil.

They realize that it is not a crime in Wyoming to shoot an Indian.”

Report from Province McCormick, Indian Inspector, to Sec’y of

Interior (Oct. 6, 1895), available at NARA, Record Grp. 75, Entry

90, Letters Received, Box 1249 (emphasis added). Inspector

McCormick’s last observation proved to be correct.

“ Available at https-//babel hathitrust.org/cgi/pt?id=mdp.390

15087536853;view=1lup;seq= 10.

16

federal prosecution was ever brought for the murder of

the Indians, as the United States Attorney had feared

would be the case."

In sum, Race Horse was premised on resistance to

Indian rights, not a conflict over the conservation of

natural resources.

Il. THE MILLE LACS DECISION ESTAB-

LISHES RACE HORSE HAS NO

CONTINUING LEGAL FORCE.

Mille Lacs overruled Race Horse for the following

reasons. First, as the Mille Lacs Court made clear,

“Congress may abrogate Indian treaty rights, but it

must clearly express its intent to do so.” Mille Lacs,

526 U.S. at 202 (citing Dion, 476 U.S. at 738-40;

Passenger Fishing Vessel, 443 U.S. at 690; Menominee

Tribe v. United States, 391 U.S. 404, 413 (1968)).

“There must be ‘clear evidence that Congress actually

considered the conflict between its intended action on

the one hand and Indian treaty rights on the other,

and chose to resolve conflict by abrogating the treaty.”

Id. (quoting Dion, 476 U.S. at 740). The Wyoming

Admission Act provides no such clear evidence because

it simply provides “the State of Wyoming is hereby

declared to be a State of the United States of America,

and is hereby declared admitted into the Union on an

equal footing with the original States in all respects

“ In August of 1895, the United States Attorney had stated

“there are no officials in Jacksons Hole—county, State, or

national—who would hold any of Manning’s posse for trial.

Either the anti-Indian proclivities of these officials or the fear of

opposing the dominating sentiment of the community on this

question would lead them to discharge all of these men should

they be brought before them for a hearing.” 1895 ARCIA at 77.

17

whatever; ...” Act of July 10, 1890, ch. 664, 26 Stat.

222.

Second, a state’s admission to the Union on an equal

footing does not extinguish treaty rights to hunt, fish,

and gather off-reservation because Indian treaty

rights can “co-exist with state management of natural

resources,” Mille Lacs, 526 U.S. at 203-05. The States’

authority over natural resources within their borders

“is shared with the Federal Government when the

Federal Government exercises one of its enumerated

constitutional powers, such as treaty making,” id.

(citing U.S. Const. art. VI, cl. 2; Missouri v. Holland,

252 U.S. 416 (1920); Kleppe v. New Mexico, 426 U.S.

529 (1976); United States v. Winans, 198 U.S. 371,

382-84 (1905); United States v. Forty-Three Gallons of

Whiskey, 93 U.S. 188 (1876); Menominee Tribe, 391

U.S. at 411 n.12)). Under settled principles the “state

{has} authority to impose reasonable and necessary

nondiscriminatory regulations on Indian hunting,

fishing, and gathering rights in the interest of

conservation,” id. at 205 (citing Puyallup Tribe v. Dep’t

of Game, 391 U.S. 392, 398 (1968); Passenger Fishing

Vessel, 443 U.S. at 682; Antoine v. Washington, 420

U.S. 194, 207-08 (1975)).

Third, the “alternative holding” in Race Horse that

“[tlhe treaty rights at issue were not intended to

survive Wyoming's statehood,” Mille Lacs, 526 U.S. at

206, is no longer the law because Mille Lacs makes

clear that a treaty mght survives statehood unless the

treaty states in clear terms that the right terminates

when a state is established. Jd. at 206-07. As the

Court observed, the 1868 Treaty “contemplated that

the rights would continue only so long as the hunting

grounds remained unoccupied and owned by the

United States.” Id. at 207. The 1868 Treaty, like the

18

1837 Chippewa Treaty at issue in Mille Lacs, contains

“no suggestion” that the Treaty right “should end

when a State was established in the area.” Jd. Indeed,

by promising that the Tribes “shall have the right to

hunt” as long as the specified conditions continue, the

possibility of an earlier termination upon statehood is

foreclosed.

Fourth, “there is nothing inherent in the nature of

reserved treaty rights to suggest that they can be

extinguished by implication upon statehood,” id.

(emphasis in original) (citations omitted). Accordingly,

Race Horse's determination that the rights held under

Article 4 of the 1868 Treaty were impliedly repealed is

no longer the law. Finally, “[t/he Race Horse Court's

decision to the contrary—that Indian treaty rights

were impliedly repealed by Wyoming’s statehood

Act—was informed by that Court’s conclusion that the

Indian treaty rights were inconsistent with state

sovereignty over natural resources and thus that

Congress (the Senate) could not have intended the

rights to survive statehood. But as we described

above, Indian treaty-based usufructuary rights are not

inconsistent with state sovereignty over natural

resources.” Jd. at 207-08.

For all of these reasons, Race Horse has been

overruled.

It. APPLYING THE RULES OF TREATY

CONSTRUCTION SET FORTH IN MILLE

LACS CONFIRMS THAT THE TRIBES

RETAIN THEIR RIGHTS UNDER

ARTICLE 4 OF THE 1868 TREATY.

In considering whether a treaty right has been

abrogated, the Mille Lacs Court emphasized that “an

examination of the historical record provides insight

19

into how the parties to the Treaty understood the

terms of the agreement,” which is important “because

we interpret Indian treaties to give effect to the terms

as the Indians themselves would have understood

them.” /d. at 196 (citing Passenger Fishing Vessel, 443

U.S. at 675-76; Winans, 198 U.S. at 380-81). The

Court also declared that “Indian treaties are to be

interpreted liberally in favor of the Indians, and .. .

any ambiguities are to be resolved in their favor.” /d.

at 200 (citations omitted). Application of those rules

to the 1868 Treaty confirms that the Tribes have the

right to hunt and fish on the “unoccupied lands of the

United States” under Article 4 of that Treaty, as the

Idaho Supreme Court correctly held in Tinno."*

The historical record leading up to the 1868 Treaty

shows the United States was well aware the Shoshone

and Bannocks needed to hunt, fish, and gather to

survive, and understood those rights had to be promised

to the Indians to obtain a cession of their lands; and

that the Indians understood treaty negotiations could

properly include such rights. Two early unratified

“© In Tinno, the State appealed from the district court’s ruling

that the Treaty right exempted the defendant from State

regulation and that he was therefore not guilty. /d., 497 P.2d at

1387-88. The Idaho Supreme Court initially held the appeal must

be dismissed because it was not authorized by LC. § 19-2804,

but went on to “consider the matter substantively” because of

importance of the question presented, the uniqueness of the

record made in the case, and the likelihood of the dispute arising

again. Tinno, 497 P.2d at 1388. The Idaho Supreme Court has

since held that Tinno was properly considered by the Court under

Article 5, § 9 of the Idaho Constitution, which “defines the

appellate jurisdiction of this Court,” and “gives this Court power

to review ‘any decision’ of the district courts.” State v. Lewis, 536

P.2d 738, 741 (Idaho 1975); State v. Holtry, 559 P.2d 756 (Idaho

1977). Tinno was also reaffirmed by the Idaho Supreme Court in

State v. Cutler, 708 P.2d 853, 857 (Idaho 1985).

20

treaties with the Tribes expressly reserved tribal

hunting, fishing, 1nd gathering rights. The Treaty of

Fort Boise of October 10, 1864 reserved the right to

fish in the erea ceded, and Caleb Lyon’s Bruneau

Treaty of Ap.il 12, 1866 reserved both the right to

fish at “accustomed grounds and stations” and “the

privilege of hunting and gathering roots on open and

unclaimed lands.” In the negotiation of the latter

treaty, the federal negotiator assured the Indians they

could reserve “this [Bruneau] valley for yourselves,

and as much more as is necessary for hunting and

fishing,” and in response, Tcho-wom-ba-ca, or “Biting

Bear,” explained “|s|kins are our clothes. Deer, |e|lk,

[flish, [ajntelope, [rjoots and seeds [are] our food.”

1866 Lyon Letter.

The importance to the Tribes of continuing to hunt,

fish, and gather even after they moved to a reservation

was made clear to federal officials after the President

issued an executive order to establish the Fort Hall

Reservation in 1867," and the federal government

sought the agreement of the Shoshones and Bannocks

to move to that reservation. In those negotiations, the

Idaho Territorial Governor Ballard inquired “Would

lyou] like to live on a reservation? Provided we build

you houses, teach you [how] to farm, |et]c?” 1867

Ballard Letter. The Bannock headmen responded,

“lwle want to hunt buffalo and to fish,” and were only

willing to move to a reservation if they were able to

leave the reservation to hunt and fish. /d.

In the 1868 Treaty, the Shoshone and Bannock

ceded lands reserved to them by prior treaty, see

" See supra nn.7-8.

“” Executive Order of June 14, 1867, reprinted in | Kappler at

836-37.

21

Shoshone Tribe, 304 U.S. at 113, agreed to move to

reservations, and secured the off-reservation hunting,

fishing, and gathering rights they had long sought and

the United States had long understood were essential

to their subsistence. At the treaty negotiations,

General Augur explained there were “a great many

white men in your country,” and their numbers would

increase when the railroad was completed. In

response to those changes, the government sought to

acquire Tribal lands and move the Indians to a

reservation. But they could hunt wherever there was

game. Augur Report at 116. “Upon this reservation

he wishes you to go with all your people as soon as

possible, and to make it your permanent home, but

with permission to hunt wherever you can find game.”

Id. (emphasis added). Chief Washakie responded, “!

want for my home the valley of Wind River and lands

on its tributaries as far east as the Popo-agie, and |

want the privilege of going over the mountains to hunt

where I please.” Jd. at 117. Bannock Chief Taghee

stated “as far away as Virginia City [Montana] our

tribe has roamed. But I want the Porte-Neuf country

and the Kamas Plains” for the Bannock reservation.

Id. at 118. These terms were agreed to in the 1868

Treaty, under which the Shoshone and the Bannock

ceded the Reservation that had earlier been set aside

for them, 1868 Treaty art. 1, Reservations were pro-

vided for them, id., and they reserved usufructuary rights

on “unoccupied lands of the United States.” Id. art. 4.

Nothing was said that would even suggest those rights

would last only until a state was established in the area.

In upholding the rights held by the Tribes under

the 1868 Treaty,"* the Idaho Supreme Court in Tinno

” The United States filed an amicus brief in Tinno, in which it

maintained its position the Tribes hold the right to hunt on

22

recognized the importance of the historical record to

the interpretation of the treaty:

We are of the opinion that the special

consideration which is to be accorded the Fort

Bridger Treaty fishing right must focus on the

historical reason for the treaty fishing right.

The gathering of food from open lands and

streams constituted both the means of eco-

nomic subsistence and the foundation of a

native culture. Reservation of the right to

gather food in this fashion protected the

Indians’ right to maintain essential elements

of their way of life, as a complement to the life

defined by the permanent homes, allotted

farm lands, compulsory education, technical

assistance and pecuniary rewards offered in

the treaty.

Tinno, 497 P.2d at 1393.” The court also recognized

its obligation to interpret the 1868 Treaty as the

Indians understood it. /d. at 1391 (citations omit-

unoccupied lands of the United States under the Fort Bridger

Treaty. Br. of United States, Amicus Curiae, State v. Tinno, 497

P.2d 1386 (Idaho 1972) (No. 10737).

*® The Ninth Circuit recognized the Tribes’ rights in Shoshone-

Bannock Tribes v. Fish & Game Comm'n, 452 F.3d 1278 (9th Cir.

1994), in which the Tribes alleged state officials had violated

their Treaty rights. The court held that “[pjursuant to Article 4

of the [1868 Treaty], the Tribes retain the right to ‘hunt on

unoccupied lands of the United States.” Jd. at 1280. Considering

whether one of the defendants was entitled to qualified immun-

ity, the court further held, citing Tinno, that “[t/he Tribes’ right

is and was clearly established,” and that “|flor more than twenty

years, the Fort Bridger Treaty has been interpreted to reserve to

the Tribes the right to fish on unoccupied lands of the United

States.” Id. at 1286.

23

ted).*" Addressing the meaning of the treaty term “to

hunt,” the Tinno court found the Shoshone and

Bannock languages “did not employ separate verbs to

distinguish between hunting and fishing but rather

used a general term for hunting and coupled this with

the noun corresponding to the object (either animal or

vegetable) sought.” Jd. at 1389. Accordingly, the verb

“to hunt” would have been understood to mean “to

obtain wild food,” and “the English terminology when

translated to [the Shoshone and Bannock] leaders .. .

would have been understood to encompass both

‘fishing’ and ‘hunting’ for game.” Id. The court also

found that “[a]nnual treks to salmon spawning beds in

the region which includes the Yankee Fork |of the

Salmon River, where the alleged offense occurred!

were part of the economic way of life of these Indians

since earliest times,” id. at 1390, and relied on General

Augur’s report, which showed “hunting and fishing”

was discussed at the negotiations, and “the true

concern of the tribal negotiators, recognized by the

government agents, |was] that the signatory Indians

were facing a major change in their way of life and

that their traditional food gathering would have to

be insured in the future,” id. at 1389. The court

concluded “[t|he history of the Indians, the tenor of the

treaty, and the understanding of the treaty by the

parties, dictate that the words ‘to hunt’ be not so

delimited as to exclude the right ‘to fish.” Jd. at 1390

(quoting district court ruling).

" That is especially important here, as “|wjhen the treaty of

1868 was made, the tribe consisted of full-blood blanket Indians,

unable to read, write, or speak English.” Shoshone Tribe, 304

U.S. at 114. The Indian understanding of the treaty was based

on their own languages, and the terms of the “treaty was

interpreted to them, article by article.” Augur Report at 118.

24

The Tinno court then considered whether the place

where the fish were taken, which was the Yankee Fork

of the Salmon River within the Challis National Forest

in Custer County, Idaho, id. at 1390-91, was subject

to the treaty right. The court emphasized this issue

was to be resolved by applying the rules of treaty

interpretation, id. at 1390 (citing Choctaw Nation v.

Oklahoma, 397 U.S. 620 (1970)), “keeping in mind the

probable understanding of the Indians.” /d. (citing

Seufert Bros. Co. v. United States, 249 U.S. 194

(1919)). The court found it difficult to “to place a neat

and technical geographical construction on [the 1868

Treaty],” id. at 1391, noting the 1868 Treaty did not

describe the ceded lands, and Brevet Major-General

Augur’s notes “refer{red| to vast areas of Idaho and

surrounding states,” id. at 1390-91. Accordingly, the

court relied primarily on the historical record and

the Indian understanding of the treaty. The court

found the “signatory Indians had roamed at will and

essentially in peace among themselves,” and “[t)hey

did not in a strict sense occupy the land they roamed;

they harvested game, fish, and berries, camas roots,

and other natural foods and moved about with the

seasonal changes.” Id. at 1391. Relying on these

findings, the court concluded “[i]n agreeing to settle on

a permanent basis they still were expecting to harvest

food on the unsettled lands as a means of subsistence

and as an integral part of their way of life.” Id.

Furthermore, the court found Article 4 of the 1868

Treaty “refers to the ‘unoccupied lands of the United

States’ and not to ‘ceded’ lands,” and the parties had

stipulated the location on the Yankee Fork of the

Salmon River where the fishing occurred was within

the Challis National Forest and was unoccupied land

of the United States. Id. Additionally, the record

showed the Indians used the Salmon River drainage

25

for subsistence purposes, took salmon by spear at the

spawning beds, and customarily hunted and fished at

the Yankee Fork locale. Jd. On this basis, the court

found the area to be covered by the Treaty. Jd. In

so holding, the court relied on the rules of treaty

construction, ruling “we must attempt to give effect to

the terms of the treaty as those terms were understood

by the Indian representatives.” /d. (citations omitted).

The court then considered the State’s power to

of the State to regulate the taking of fish and game,

39-40. The Arthur Court further held neither the Idaho

26

State’s power to regulate Treaty fishing under the

1868 Treaty, the court held “spearing a chinook

salmon in the Yankee Fork River, certainly cannot be

regulated by the state unless it clearly proves

regulation of the treaty Indians’ fishing in question to

be necessary for preservation of the fishery. To

require less of the state would emasculate the treaty

rights and violate the ‘supremacy clause.” Id. at 1393.

The court then determined the State had failed to

show its regulations were reasonable and necessary

for the preservation of the fishery. Jd. at 1392.

In sum, Mille Lacs establishes that Race Horse is no

longer the law, as the Tinno court had earlier

concluded, and “the history of the |1868 T]reaty, the

negotiations, and the practical construction adopted by

the parties,” Mille Lacs, 526 U.S. at 196 (quoting

Choctaw Nation v. United States, 318 U.S. 423, 432

(1943)), demonstrates that under Article 4 of the Fort

Bridger Treaty, the Tribes have the right to hunt and

fish on the “unoccupied lands of the United States,”

Tinno, 497 P.2d at 1389-91.

IV. THE TRIBES EXERCISE CO-MANAGE-

MENT OF THEIR OFF-RESERVATION

TREATY HUNTING AND FISHING RIGHTS.

Today the Tribes, under their own regulations and

in cooperation with States and the federal govern-

ment, ensure that off-reservation treaty rights are

exercised consistent with the protection of natural

resources. See Mille Lacs, 526 U.S. at 204. The Tribes

regulate their members’ treaty hunting off-reservation

by law, see Tribal Law & Order Code ch. XVII § 4, and

annual regulations, see Shoshone-Bannock Tribes

Fish & Game Comm'n, 2018-2019 Shoshone-Bannock

Tribes Big Game Hunting Regulations (2018). These

define what animals may be hunted off-reservation,

27

id. pt. 2.2, the location, id. pt. 2.3, times, and methods

of hunting allowed, id. §§ VIII-[X, and seasons for each

species, id. § X. Tribal hunters must obtain species-

specific hunting tags, id. § XIII, and report the taking

of certain species, id. pts. 10.1-10.2.

The Tribes also cooperate with state and federal

agencies to implement off-reservation conservation

programs. These collaborative agreements protect

wildlife habitat, thereby supporting fish and game for

both Indians and non-Indians alike. For instance,

the Tribes have agreements with the U.S. Fish and

Wildlife Service that permit a limited ceremonial

bison hunt on the National Elk Refuge, under the

terms of a special use permit and tribal regulations.

Memo. of Agreement between Nat’ Elk Refuge &

Shoshone-Bannock Tribes § VIII(B), (E) (2017). The

Tribes, the State of Idaho, and the Bonneville Power

Administration (“BPA”) are parties to memorandums

of agreement implementing the Southern Idaho Wildlife

Mitigation Agreement (““SIWMA”), under which the

State and the Tribes purchase land to replace the acre-

age adversely impacted by federal hydropower projects

in southern Idaho. Under this agreement, BPA

provides funding that the Tribes use to purchase and

preserve wildlife habitat in southern Idaho, and the

Tribes then develop Management Plans for the land

that regulate grazing, road closures, access, and “other

management practices designed to protect wildlife and

their habitats ... .”. SIWMA, BPA & Shoshone-

Bannock Tribes §§ 1-4 (1997). The Tribes reserve their

treaty rights on the land and the right to put the land

into trust. Id. § 10. The Tribes and Idaho also allocate

28

responsibility to purchase the remaining SIWMA

mitigation acreage.”

Additionally, the Tribes are party to the Columbia

Basin Fish Accords, a partnership between tribes,

States, and federal agencies to mitigate the effect of

dams on fish in the Columbia River basin, including

stocks that the Tribes fish in the exercise of their off-

reservation treaty rights. See BPA, Adm’rs Record

of Decision, 2008 Columbia Basin Fish Accords Memo.

of Agreement with Shoshone-Bannock Tribes 1-2

(Nov. 2008). Under the Accords, the parties jointly

implement projects to protect anadromous salmon,

resident trout, and other wildlife that are affected by

federal dam projects. Id. at 4.

These regulatory measures confirm that the Tribes’

Treaty rights are reconcilable with State conservation

interests.

™ See BPA, Adm’r’s Record of Decision & Resp. to Comments,

S. Idaho Wildlife Mitigation Memo. of Agreement 2 (2014),

available at https//www.bpa.gov/news/pubs/RecordsofDecision/

rod-20140923-Southern-Idaho- Wildlife- Mitigation- Memorandum.

of-Agreement.pdf.

29

CONCLUSION

The judgment of the Wyoming district court should

be reversed.

Respectfully submitted,

DOUGLAS B. L. ENDRESON WILLIAM F. BACON

ANNE D. Noto Counsel of Record

FRANK S. HOLLEMAN, IV MONTE GRAY

SONOSKY, CHAMBERS, SHOSHONE-BANNOCK TRIBES

SACHSE, ENDRESON 306 Pima Dr.

& Perry, LLP Fort Hall, [ID 83203

1425 K St., N.W. Suite 600 (208) 478-3822

Washington, DC 20005 bbacon@sbtribes.com

(202) 682-0240

Counsel for Amicus Curiae

September 11, 2018