Protect Treaty Hunting Rights of Individual Nez Perce Indians

Update posted by Gary Dorr On Apr 05, 2021

Thank you for your ongoing financial support! I am providing a little bit more background into what I am trying to protect with this legal project. Please read and pass along. Please provide financial support to this legal project so that we can protect the hunting rights of individual Nez Perce Indian Hunters in our 1855 Treaty Territory. Here it is:

August 14, 1848, the United States Congress created the Oregon Territory (out of the Provisional Government of Oregon); this territory included the land that encompasses today's states of Oregon, Washington, and Idaho, and parts of Montana and Wyoming. Washington Territory split off from the Oregon Territory on March 2, 1853.

In 1850, according to US Census Bureau statistics, the Oregon Territory population was 13,294. This included all the land that we know now as Oregon, Washington, and Idaho and parts of Montana and Wyoming. This Oregon Territory population of 13,294 in 1850 consisted of 2,374 families or probably ranches or settlements. Not all of the 2,374 families lived on farms or settlements though. Many would have lived in the small towns at that time. Let's say 800 lived in towns. That leaves about 1,600 on farms or homesteads, in the entire territory.

Why are these numbers significant? In 1855, this was the closest approximation to the population that the Nez Perce would have had at least some knowledge about when they signed the 1855 Treaty with the Nez Perces and the USA. The 3rd article of the Nez Perces 1855 treaty says: "The exclusive right of taking fish in all the streams where running through or bordering said reservation is further secured to said Indians: as also the right of taking fish at all usual and accustomed places in common with citizens of the territory, and of erecting temporary buildings for curing, together with the privilege of HUNTING, gathering roots and berries, and pasturing their horses and cattle UPON OPEN AND UNCLAIMED LAND.

In US v. Winans, US Supreme Court Justice McKenna wrote that "Under the Canons of Treaty Construction, the Court will construe a treaty with Indians as they understood it and as justice and reason demand." Justice McKenna also wrote that, "The reservations were in large areas of territory, and the NEGOTIATIONS WERE WITH THE TRIBE. They reserved rights, however, TO EVERY INDIVIDUAL INDIAN, as though named therein." (This is the legal doctrine of parens patriae, in that our Grandfathers, the treaty signers, the Camp Government, signed on behalf of all their grandchildren because they could not sign. They were too young, or they were not born yet. "Tribes" did not exist in many cases. In 1855 at the time of the Treaty signing, there was no Nez Perce Tribe. Many of our Nations had Camp governments, not tribes, where chiefs only spoke on behalf of their camps.)

For purposes of interpreting the Nez Perce Treaty of 1855 which preserved our right to hunt, fish and gather on OPEN AND UNCLAIMED LANDS, the grandfathers who signed at that time, signed with the knowledge that some people had claimed lands in the territory. How many people? 2,374 families were living in what is now known as Washington, Idaho, Oregon, part of Montana, and part of Wyoming. Here, we have just broadly "guessed" that 1,600 of those families had claimed land as "homesteads." The rest of the land at that time, was unclaimed, and in 1855 our grandfathers would have understood that they were signing to continue hunting, fishing, and gathering on all that unclaimed land that existed then, in 1855.

If you go to a Land Title Office today, what is not on every single deed to John Doe's property, is the encumbrance of the 1855 Treaty Provision to hunt on that land. You may see an encumbrance of a sidewalk, a power line right of way, a road right of way, or an irrigation ditch right of way, on any deed today. But older than all those encumbrances, is the 1855 treaty provision that the United States Agreed to, that the Nez Perce could hunt there. When a timber company buys 100,000 acres of timber land, the right of the tribes to hunt there was never taken away. If Ted Turner came up here to Idaho and bought himself 300,000 acres of land, what should be on his deed, is an encumbrance of our treaty right to hunt fish and gather there because in 1855, the US government and the Tribe agreed that we would retain the right to hunt, fish, and gather there as long as it was open and unclaimed. That is the huge misunderstanding to people who don't truly study treaties, land titles, deeds, contract law, and US laws. When you buy land today, you can't just get rid of an encumbrance on the land like an irrigation ditch because you don't want it on you land. Way before you, the deed holder of the land was compensated for putting in that ditch for 100 years or for "in perpetuity," which means forever. If you buy the land with that encumbrance, you buy it with the encumbrance, the burden, of that already agreed to irrigation ditch, or....treaty right. Now within the bounds of reason, as the courts have agreed to, you can't go shooting on somebody's house lot, and you can't just go shoot on agricultural land. That is within reason. But in 2017, in Wyoming V. Herrerra, Supreme Court Justice Sotomayor wrote the majority opinion and said "The court further held that Bighorn National Forest did not become categorically “occupied” when the forest was created, which would have voided the treaty right. The treaty term “unoccupied,” the court stressed, must be interpreted as the Crows understood it, and the court cited historical evidence that, to the Crows, “unoccupied” would have meant “free of residence or settlement by non-Indians.” This Supreme Court ruling from 2017 also stated, "Wyoming also claims that exploitative mining and logging of the forest lands prior to 1897 would have caused the Crow Tribe to view the Bighorn Mountains as occupied. But the presence of mining and logging operations did not amount to settlement of the sort that the Tribe would have understood as rendering the forest occupied. In fact, the historical source on which Wyoming primarily relies indicates that there was “very little” settlement of Bighorn National Forest around the time the forest was created. Dept. of Interior, Nineteenth Ann. Rep. of the U. S. Geological Survey 167 (1898)."

So, Individual Nez Perce Indian hunters, also can make the argument that open and unclaimed lands in the 1855 conditions, with the population from the 1850 US CENSUS, indicated that the 1855 Treaty with the Nez Perces was signed with the intent to continue to hunt on the lands that were open and unclaimed in 1855. The Treaty did not say that the Nez Perce were agreeing to hunt on open and unclaimed lands, "as they continue to diminish." So the encumbrance, the burden, is already attached to the land and has been since 1855. Just because county land title offices do not put that encumbrance on deeds for land, does not mean it does not exist. This is the big misunderstanding with regard to Nez Perce Hunting in our 1855 Treaty Territory. This is what I am endeavoring to protect. Your financial assistance in this project is based on Supreme Court Justice Black's statement that "GREAT NATIONS, LIKE GREAT MEN, SHOULD KEEP THEIR WORD." The word that the US should keep is that the Nez Perce retained rights to hunt on open and unclaimed land, as it was understood in 1855. The word that the US should keep is contained in the 2nd clause of the 6th Clause of the United States Constitution, where it states that "Treaties are the Supreme Law of the Land."

I hope you can support this legal effort, with this understanding as to what the State of Idaho is doing, by interfering with the Federal 1855 Treaty with the Nez Perces, and falsely claiming jurisdiction over Individual Nez Perce Hunters. The Nez Perces negotiated Treaty Reserved Rights in our 1855 Treaty Territory with the US Government, not States. In this legal project we are endeavoring to protect this inherent right which we reserved in our 1855 treaty. Please support if you can, and if not, then pass the information along. I would appreciate it. The time is ripe to protect the Individual Nez Perce Indians' right to hunt in our territory, and for whatever reason, the Tribe will not defend the Treaty Right of Individual Nez Perce Hunters when illegal action is taken against Nez Perce Hunters by the states of Washington, Idaho, Oregon, and Montana. qeci yewyew (thank you)

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