Treaty Tribes Handed Hunting Victory Appeals Court Widens Area In Which Indians Can Hunt Elk In Washington

The Washington Department of Fish and Wildlife will have to work harder to protect elk in the aftermath of an appeals court decision that says treaty Indians may hunt on open and unclaimed lands anywhere in the state, a top state biologist says.

The decision, handed down by a three-judge appeals panel in Spokane, affirmed a Yakima County Superior Court decision. It said off-reservation hunting by a Washington treaty Indian is not limited to the area that was ceded by his or her tribe to the United States through treaty, but may be carried out anywhere in the old Washington Territory that is “open and unclaimed.”

Will that mean correspondingly less hunting by non-Indians?

“Over time, certainly, in some areas,” said Dave Brittell, who heads wildlife management for the Fish and Wildlife Department.

His agency has not yet estimated how much tribal hunting pressure will increase on the state’s main elk herds, or projected probable changes in harvest distribution, he said.

The Yakima County Prosecutor’s Office has asked the state Supreme Court to review the appeals court decision, and the state high court is expected to decide early in 1998 whether to consider it.

The appeals court decision stemmed from a Yakima County case involving Donald Buchanan, a member of the Nooksack Tribe of northwestern Washington who was charged with possessing two elk out of season and hunting in a state Wildlife Area without a valid license.

Fish and Wildlife Department enforcement officers discovered Buchanan, his brother and his uncle, all Nooksack tribal members, in January 1995 with the carcasses of two five-point elk they had killed in the department’s Oak Creek Wildlife Area near Yakima. Elk hunting was closed at that time under state law.

Buchanan did not have a valid Washington hunting license, the appeals court said, “due to a prior elk hunting violation.”

Officers cited the hunters on the grounds that the Nooksack Tribe had no treaty rights east of the Cascade Mountains. Buchanan contended he was lawfully exercising subsistence hunting rights under the Point Elliott Treaty of 1855.

Yakima County Prosecutor Jeff Sullivan argued that treaty hunting rights were limited to land ceded by the tribe and to usual and accustomed areas, like fishing.

The appeals court said they were not.

In the Point Elliott Treaty, the Nooksacks, along with many other Western Washington tribes, ceded lands from Puget Sound to the summit of the Cascades. In return, the U.S. government guaranteed the tribes’ rights of “taking fish at usual and accustomed grounds and stations … together with the privilege of hunting and gathering roots and berries on opened and unclaimed lands.”

The Point Elliott Treaty does not limit hunting rights to ceded lands or to traditional hunting grounds, the appeals court said.