MISSOULA — A bill that would allow non-tribal residents to hunt big game on the Flathead Reservation is one in a long line of similar bills that have tried and failed to challenge tribal sovereignty over the past few decades.
Rep. Tracy Sharp, R-Polson, told the House Fish, Wildlife & Parks Committee Tuesday that his bill, House Bill 216, would allow non-tribal landowners to hunt big game on their property within the bounds of the Flathead Reservation.
Nonnative landowners currently can’t do that, because the Confederated Salish and Kootenai Tribes (CSKT) manage the wildlife on the reservation, where the Hellgate Treaty of 1855 gave them “the exclusive right of taking fish in all the streams” and “the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land.” Sharp and some of his supporters want to change that.
“This is a winning situation for all parties, as far as I’m concerned,” Sharp said. “You will likely hear that I didn’t coordinate this bill with the CSKT Tribal Council, and I’ll take that deserved chest dart. Be that as it may, this issue is by no means new. Perhaps I saved the middleman’s steps since I’m fairly certain the CSKT’s answer would be ‘No’ since they’ve heard this before.”
The CSKT has heard this kind of bill before, and they've heard several of the bill’s proponents who over the years have repeatedly claimed that CSKT laws and rights interfere with their own. So the CSKT and other tribes don’t agree that it’s a winning situation.
Former legislator Sharon Stewart-Peregoy of the Crow Tribe said she’d seen the bill before in various forms. It was introduced in the 2021 Legislature. It was then proposed for a ballot initiative for the 2024 election but was able to garner enough support to appear on the ballot.
“You should table this bill,” Stewart-Peregoy said. “We’re talking sovereignty, we’re talking about our homelands and we have the subject matter jurisdiction in this area. So I would ask for a do-not-pass, and I hope it never comes up again.”
Sen. Shane Morigeau, D-Arlee, said the American Indian Caucus strongly opposed the bill because it would wreck tribal-state relationships.
It could also send the state and tribes back to court to hash out the Cool litigation from the late 1980s.
In the late ’80's, a district judge ruled that the CSKT had authority over fishing on the reservation, but the issue of hunting was more complicated.
So to avoid more costly litigation, the state of Montana and the CSKT reached an agreement that now allows nontribal upland bird hunters to use reservation land but not big game hunters.
Anglers are also allowed access to the southern half of Flathead Lake.
Morigeau and others said HB 216 could negate that agreement for the CSKT but also raise questions on other reservations.
“This will result in an endless series of fights all across Montana. Landowners from other reservations will come in and say, 'Now do this for us on our private lands now too'," Morigeau said. “Lastly, it would result in tribal lands being closed off, likely all across the state.”
Fish, Wildlife & Parks Director Kristy Clark backed Morigeau, saying FWP opposes the bill so that the agreement and a positive working relationship with the tribes can be upheld.
Sharp said he brought some of his constituents to the hearing because he had more constituents than the CSKT Tribal Council.
He said they all pay state taxes on their property but they can’t hunt their property.
However several of those constituents have previously appeared at the Legislature in opposition to Native American bills, including the ones that finalized the CSKT Water Compact.
Former FWP warden Rick Schoening and his son Brendon testified in favor of Sharp’s bill, saying many of the same things they said while testifying for the similar bill in 2021.
Schoening was also responsible forproposing the 2024 ballot initiative.
“Deer and elk are part of the public trust here in Montana, they belong to everyone. The CSKT believe they are the sole owners,” Rick Schoening said. “HB 216 represents a significant opportunity for positive change for residents of Lake and Sanders County and especially for landowners wanting to exercise their constitutional right to harvest on their own land.”
Other proponents included former Ronan legislator Rick Jore; Mission Mountain Properties realtor David Passieri; and Kris Killorn of the Outdoor Heritage Coalition who spoke on behalf of his father Steve Killorn, who owns a ranch on the reservation.
On Tuesday, when committee members questioned Jore about his statements dismissing treaty protections, Jore said he didn’t pay much attention to court rulings that supported the tribes.
“I’m not of the number of those who believe that our government was intended to be a judicial oligarchy and that judges are somehow infallible. That’s why I presented the actual language in those documents. It may be interpreted by a judge much different than me,” Jore said.
Starting in the 1990s, Jore sponsored bills seeking to terminate the state-tribal hunting and fishing agreement and also one opposing transfer of the national bison range to the CSKT.
He also tried to block state-tribal compacts. In 1998, Jore explained his reasoning, saying tribal sovereignty “flies in the face of everything that this country is about.”
Passieri, Jore, Steve Killorn and other proponents were associated with the Western Montana Water Users Association, an organization formed in 2012 to oppose the CSKT Water Compact.
According to a Montana Human Rights Network report, Western Montana Water Users combined rhetoric about takings and property rights with comments that disparaged Native Americans, treaty rights and tribal sovereignty.
During the 2013 Legislature, both Steve Killorn and Passieritestified against the CSKT Water Compact.
Passieri said the compact was a “non-viable irrigation project “ that “dovetails into a greater darker conspiracy” perpetrated by the Tribes.
On Tuesday, Steve Capra of Bold Visions dismissed the claim that reservation landowners were being denied the right to hunt on their land.
Any number of Montanans are not allowed to hunt on their own land, including those who have inholdings in national parks or who live in towns like Helena or Missoula that have deer problems.
“Say you belong to a Homeowners Association when you bought your property. You know what you’re getting into. So suddenly, we’re going to demand to change the rules of the Homeowners Association? I don’t think so,” Capra said. “The people who purchased this land knew what they were in, and now they want to change the rules.”
CSKT Tribal Council Vice Chair Tom MacDonald said none of the proponents, including Sharp, had ever come to the tribes to discuss the issue — but they should have before trying to ram a bill through.
“Our cooperative agreement can be amended to allow for additional use by nonmembers as needed. The irony about this is this has got the cart ahead of the horse, and we don’t need to do this action,” MacDonald said. “I can’t speak for the entire council. But I can guarantee you we would do our best to defend our treaty rights and do what’s right under the United States Constitution to not have states infringe upon the federal interaction with tribes.”
No action was taken on the bill.
Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.
