A sign denoting the boundary of the Flathead Indian Reservation along U.S. Highway 93. (Ken Lund, CC BY-SA 2.0)
An “emotionally-charged” bill that would allow non-tribal members to hunt big game on their own property within the boundaries of the Flathead Reservation drew opposition from tribal members and wildlife managers in a hearing this week.
Supporters of House Bill 216, brought by Rep. Tracy Sharp, R-Polson, comprising mostly non-tribal private landowners on the reservation, said they deserve full use of the land they pay taxes on, and that increased hunting opportunities would help prevent crop degradation and keep wildlife numbers under control.
Sharp, who admitted he did not work with the Confederated Salish and Kootenai Tribes on his bill, said the complicated and unique legal history of the Flathead Reservation makes the issue confusing, but believes it is a simple bill.
“My proponents are not asking for the moon and the stars,” Sharp said in a hearing Tuesday. “If they are to pay this state full taxes for their private property, they should be permitted the complete and uncompromised enjoyment of it.”
But opponents, who outnumbered proponents by a 2-to-1 margin, said the bill violates treaty rights, infringes on tribal sovereignty and could undermine state-tribal relationships, including potentially compromising existing hunting and fishing opportunities. Friday, the committee had not yet taken action on the bill.
“This bill, we believe, would wreck tribal-state relations and partnerships and force everyone back to court in regard to long-standing agreements,” said Sen. Shane Morigeau, a Democrat who represents the southern part of the Flathead Reservation and spoke on behalf of the Montana American Indian Caucus. “In addition, it will cost the state an unknown amount of money and tribal goodwill.”
He said the state and tribes have handled the “unique jurisdictional matter” for decades, and did not need to relitigate the past. Morigeau also expressed concerns the caucus has that the legislation would have a ripple effect throughout the state, as private landowners living on other reservations would come forward asking for the same privileges.
Christy Clark, director of Montana Fish, Wildlife and Parks, opposed the bill on behalf of the agency, saying that it would adversely affect the positive relationship between the department and the CSKT. In addition, Sharp’s bill is written to divert license fees for private landowners to go to the CSKT instead of her department, which Clark said flies in the face of state and federal law.
Big-game hunting within the boundaries of a tribal reservation by non-tribal members is illegal, according to a Fish and Game Commission Rule, with limited exceptions. The Blackfeet Tribe allows a select number of guided trophy moose, bison and elk hunts by lottery.
The CSKT allows some fishing and bird hunting by non-tribal members on the Flathead Reservation as a result of a legal settlement between the tribe and the state more than 30 years ago, and many opponents said the bill could jeopardize this agreement.
Tribal wildlife managers said they have depredation programs in place in coordination with landowners to deal with crop degradation as well as disease management plans that mirror the state’s.
Private property versus Tribal Sovereignty
The Flathead Indian Reservation is unique among Montana’s reservations for having a majority non-native population.
That’s due to the Flathead Allotment Act of 1904, a federal law that assigned tribal land to individual members, authorized the disposal of “surplus” lands to non-members, and led to the loss of more than half of the reservation land base.
Now, roughly one-third of the land within the reservation is owned outright by individuals and is taxable — the basis of Sharp’s bill.
However, the Allotment Act violated the original 1855 Hellgate Treaty, which created the Flathead Reservation and reserved the CSKT the “exclusive right” to fish and hunt on the reservation.
John Harrison, a staff attorney with the CSKT, said the Flathead fishing and hunting agreement, which stemmed from litigation with the state over who had jurisdiction to license fishing on the reservation, is “one of the most incredibly successful tribal-state cooperative agreements in the history of this state.”
“It is very popular. The tribes don’t want to go back to litigation. The state doesn’t want to go back to litigation. Most of the general Montana public has not been interested in this issue,” Harrison said. “This is something that serves a small number of people, a passionate number of people, certainly.”
Similar bills have been introduced in the Legislature numerous times during the years, including one during the 2021 session. Last year, a ballot initiative with a similar goal failed to get enough signatures for consideration.
Retired game warden Rick Shoening, who championed the ballot initiative, said he thought the bill could benefit relationships between private landowners and the tribe.
“Deer and elk are part of the public trust here in Montana, they belong to everyone. The CSKT feel that within the reservation boundary, they are the sole owners,” Shoening said.
Other proponents included Rick Jore, a former legislator in the 1990s who tried to terminate the hunting and fishing agreement when he was in office; Ross Middlemist, who owns a 3,000-acre ranch near Dixon; Jeff Dara of Montana Sportsmen for Fish and Wildlife, and Chris Killorn representing the Outdoor Heritage Coalition and his father, who owns property on the reservation.
“I think for landowners to be able to gain subsistence living on their own property can only be right,” Killorn said.
Twenty-three individuals and representatives from the multiple Native communities and hunting and fishing organizations all urged the committee not to pass the bill, many concerned about the tribes ending the current cooperative fishing and bird hunting agreement.
“The really unfortunate thing is, it would result in tribal lands being closed off, likely all across the state,” Morigeau added. “Access to things like your favorite fishing hole, your favorite hiking sport, could possibly be gone if this bill would pass.”
Tom McDonald, vice chairman of the CSKT council, told the committee they only need to look to the ceiling of the Capitol to understand the root of the issue.
“As demonstrated there in the Capitol building, the Charlie Russell painting with the Salish meeting Lewis and Clark, we’ve always been a very friendly tribe,” McDonald, told the committee. But, he guaranteed that “We will do our utmost to defend our treaty, our sovereign rights that have be en established for tens of thousands of years on our homelands.”