Larry McAdams stood in the snow at Fort Washakie on the Wind River Reservation. In a crisp gray ball cap, sunglasses and a blue medical mask, the Eastern Shoshone elder knew he was in for a long afternoon. McAdams was upset, and he was not alone; roughly 30 tribal members were with him, all holding signs and demanding answers from the tribal nation’s business council.
“We’re here to protest House Bill 83 … and the council’s involvement with that,” McAdams said. “The state of Wyoming, or any state, has no authority over our recognized treaty tribes.”
In April 2022, the Eastern Shoshone Business Council had approached Gov. Mark Gordon’s office to express an interest in addressing off-reservation hunting. Many tribes have treaty-protected hunting rights that extend beyond reservation boundaries, and the business council wanted to open up a dialogue with the state on possible collaboration. And while the talks between Gordon’s office and the Eastern Shoshone Business Council were casual, many tribal members were upset when, less than a year later, in January 2023, members of the Wyoming Legislature introduced a bill — HB 83 – Tribal agreements to hunt and fish — that would allow Gordon’s office to negotiate with tribes over tribal members’ off-reservation hunting, fishing and trapping rights. For McAdams and the rest of the protesters, any issue involving treaty hunting should first be brought to an Eastern Shoshone General Council Meeting, which is the constituency’s governing body.
The issue of off-reservation hunting rights is a thorny one for tribal citizens in Wyoming, largely due to the state’s ongoing desire to have a legal and political say over the activities of Indigenous hunters. Before the U.S. Supreme Court’s Herrera v. Wyoming decision in 2019, which upheld treaty-protected off-reservation hunting rights, the state maintained that statehood trumped treaty obligations.
Tribes are not required to externally collaborate with any agency prior to implementing any activity protected by a reserved treaty right.
Claudia Washakie, Fort Hall Business Council member
The Eastern Shoshone Business Council originally supported HB 83. The council’s vice chairman, Mike Ute, who spoke at a Wyoming House Appropriations Committee meeting in favor of working with the state to prevent future litigation, expressed his desire for the state and Eastern Shoshone Business Council to be on the same page. An agreement could help avoid any tense encounters between tribal hunters and state law enforcement who might be unfamiliar with treaty hunting rights.
But after the bill was advanced to House committee hearings, the Eastern Shoshone Business Council changed its mind. In a letter to the governor, the council wrote, “We apologize for this development; however, we now believe that the bill will jeopardize and compromise the rights of our tribe and other tribes if it becomes state law.”
The business council explained that it changed its position after conferring with the Shoshone-Bannock Tribes. The tribal nation is located on the Fort Hall Reservation in Idaho, but, like the Eastern Shoshone, is a signatory of the Fort Bridger Treaty of 1868, which protects off-reservation tribal hunting rights for citizens of both nations.
Claudia Washakie, a member of the Fort Hall Business Council, spoke in opposition to the bill before the House Appropriations Committee. She said the Shoshone-Bannock work in partnership with the state of Idaho, but emphasized that the tribe makes its own policies governing its members’ off-reservation hunting, fishing and gathering. Washakie cited language in Article 4 of the Fort Bridger Treaty of 1868, which supports off-reservation hunting.
According to the treaty, tribal members would make reservation land its permanent home, “but they shall have the right to hunt on the unoccupied land of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians.” In short, the law is already clear: The tribe does not need permission from either Idaho or Wyoming to establish its own hunting regulations.
“In a contemporary sense, tribes have the sovereign authority to regulate all aspects of hunting, fishing and gathering under our treaty rights … free from interference by state regulation,” Washakie said. “Tribes are not required to externally collaborate with any agency prior to implementing any activity protected by a reserved treaty right.”
Particularly rigid
Monte Mills, the director of the Native American Law Center at the University of Washington, said bills like HB 83 are not unique, and agreements with state officials regarding conservation exist elsewhere. But, Mills continued, Wyoming’s proposed version was particularly rigid, outlining specific ways in which tribal nations and the governor’s office can enter into agreements.
“From a tribal perspective, there might be objections to saying that we’re essentially going to follow everything that the State Wildlife Commission does,” Mills said. “We’re going to follow their seasons, or we’re going to follow whatever the limitations that are set out on the governor’s ability to negotiate may not be acceptable to tribal partners.”
As evidenced by February’s protest, treaty hunting, fishing and gathering rights are an important issue for the tribes on the Wind River Reservation, particularly given the fact that the state has just poured public resources into fighting treaty hunting rights in court. Eastern Shoshone tribal members like McAdams were also upset by what they saw as a clear circumvention of their nation’s governing process by the business council. Many tribal citizens only found out about the proposed policy change after the bill was introduced.
“That creates a lot of political tension and pressure,” Mills said. “The tribal government itself may be kind of caught between the political realities of working with the state of Wyoming and making sure to represent the interests of the constituents.”
Even though HB 83 died in the Senate, members of the Legislature complained that Gordon should not be allowed unilateral power to enter into agreements with tribes without input from state legislators. Tribal hunting rights will almost certainly be re-examined later.
Meanwhile, many Eastern Shoshone tribal members remain disappointed by the business council’s handling of the issue. During the protest in Fort Washakie, Vice Chairman Ute stepped outside the council offices to address the crowd, saying the business council never initiated conversation with the governor’s office with the express desire of creating a bill like HB 83. He then added that the law itself did not make agreements, it only allowed the state to enter into agreements with tribes.
“That’s not the point,” a voice called out from the crowd. “You should have come to us first.” Protesters held a sign that read: “Respect and Honor the Shoshone General Council.”
This piece was originally published in High Country News.
If the treaties written in 1800s and going to be enforced, shouldn’t the hunt participants be required to use period correct weapons and equipment? No binoculars, scoped rifles, pick ups, sxs or atvs?
Based on your logic, miners should use the methods and equipment that were in use when the Mining Act of 1872 became law. I’m OK with that. Any you?
WHITE MEN SLAUGHTERED THE INDIANS SOURCE OF FOOD – THE BUFFALO: Please consider that one of the main reasons for designating off reservation hunting areas for the native tribes was to replace the lost buffalo herds. The government even went so far as contracting with stock contractors to deliver cattle to the tribes on their reservations since the buffalo were all but eradicated. The tribes may even have the right to graze their own branded buffalo on unsettled, large tracts of federal land in the designated areas. The basic concept of the 1800s was that the government had an obligation to provide substance to the native tribes when they forced them onto reservations – either by supplying cattle via stock contractors or designating additional off reservation hunting areas. Any deer, antelope or elk they may harvest on off reservation, non occupied federal lands are simply a replacement for the buffalo who once roamed freely.
Bottom line is that the American people entered into treaties which provided food sources for the natives who agreed to reservation life – and that signed agreement included additional designated hunting areas.
Minor correction. The Eastern Shoshone letter reversing its position came after the House of Representatives passed HB 83 on a vote of 61-1, not while the bill was pending in committee.
This is such a thorny issue, as the world has changed remarkably since the 1860s. Tribes no longer need subsistence hunting to survive. Unlimited hunting, anytime, anywhere as envisioned by the treaty is no longer realistic. Too many alterations to ecosystems, too much technology and too many other users. Wildlife, once thought to be limitless, has now proven to be as fragile and limited as the habitat it relies on. This ruling came from the Herrera case where Crow members used high powered, scoped hunting rifles, pick up trucks and snow machines to chase down large bull elk during the winter time. These things hadn’t even been invented yet in 1868. Nor had wildlife management.
If tribal members agree to be limited to the technology they had when the treaty was signed, then perhaps this would be easier. They would only travel on foot or horseback, home made bows or muzzle loading firearms only, no modern optics and so on. But of course they won’t agree to this. One compromise would be for the state to grant tribes a set number of tags to be used during established seasons. That way, tribal take could be managed like everything else. But tribes have reportedly rejected this. Like the original treaty, this is going to have to be negotiated in order to be workable. What the tribes want is unrealistic and will lead to confrontation. Hopefully a compromise can be found.
Really? When the 2nd amendment was written guns were single-shot black powder affairs. No matter how many grade schoolers are murdered with AR’s we can’t seem to see the logic in changing that.
Subsistence hunting has little to do with food availability- grocery stores are only one place to get food. Traditional diets can still be honored while the use of modern tools are part of the harvest.
It’s just another scenario where non-native people want to pull back on promises made because they are no longer convenient to the insatiable need for power and land.
Interesting train of thought, if one accepts it, then the 2nd Amendment to the Constitution would also be limited to the arms available at its signing. Are you also suggesting that non-tribal members be limited to that same level of technology?
You may not be aware of the Tribal Game and Fish Code which places limits not only on when tribal members may hunt, but on the number of animals that may be harvested. There are still many families that rely on wild game for as a primary source of meat.
If Wyoming wants to abandon the treaty perhaps it should start by giving back all the land that was ceded by the tribes (and the attached water and mineral rights) in the treaties.
Thank you for an explanation of this controversy and to be educated about treaty rights. As to the notion that tribal people are no longer dependent on hunting for subsistence is actually not true. Maybe a follow-up story about how many do hunt for wildlife to feed their families would be good, not for sport and trophies.
Well said!