Australian, Canadian, U.S. high courts open refuges to native hunters

From ANIMAL PEOPLE, November 1999:

CANBERRA, OTTAWA, WASHINGTON,
D.C.––The Supreme Court of Australia on October 7 ruled 5-2
that the 410,000 recognized members of aboriginal tribes are
exempt from hunting and fishing license laws, under the
Federal Native Title Act of 1993, and may freely hunt even
protected and endangered species for personal use.
The Australian high court struck down parts of the
earlier Queensland Fauna Conservation Act on behalf of
Gangalidda tribe activist Murrandoo Yanner, who speared two
esturine saltwater crocodiles near Doomadgee in 1994 to create
the test case. The Yanner victory is expected to mean charges
will also be dropped against aboriginals who are charged with
illegally killing an extremely rare spiny anteater and an endangered
dugong, apparently also to set up test cases, as well as
against alleged aboriginal poachers of fish and seagull eggs.


The Australian verdict paralleled a series of recent
U.S. court rulings and 5-2 verdict by the Supreme Court of
Canada in the case of alleged Mi’kmaq commercial eel poacher
Donald Marshall, which each agreed––with some varying
nuance––that wildlife exploitation rights conferred by 18th and
19th century treaties remain in effect. The treaties in each
instance were challenged essentially by the contention that they
were negotiated on the pretext that the indigenous tribes were
sovereign nations, and that the tribes had subsequently surrendered
sovereignty as part of subsequent negotiations by which
they obtained various government benefits.
Because Marshall was capturing and selling eels
commercially without a license, the verdict in his case left
wildlife authorities all over Canada wondering how they can
protect animals from any activity organized by a tribe member.
Warned Green Web coordinator David Orton, “There
will be no leave-alone wildlife, forest, marine sanctuaries.
All will be legally open for exploitation. Aboriginal peoples
use a misleading ‘harmony with nature’ language for public
consumption, but emphasize rights to exploit, not conserve.
For most aboriginals who have grown up within industrial consumerist
culture, as for non-aboriginals, nature is a ‘resource.’
The main question now is access. Even before this latest ruling,
the off-reserve Native Council of Nova Scotia was
engaged in discussion with Parks Canada about access ‘for harvesting
natural species in federal parks,’ according to their
September newspaper.”
Key U.S. verdicts were rendered by the Supreme
Court on March 24 and April 19. In the first case, the court
held 5-4 that eight Chippewa bands may continue to hunt and
fish on 13 million acres of public land in Minnesota, independent
of state regulation, under an 1837 treaty which predated
Minnesota statehood by 21 years. In the second case, the
Supreme Court let stand a Federal Court of Appeals ruling
which found that the Menominee tribe of Wisconsin had signed
treaties in 1831, 1836, 1848, and 1854 which unlike the
Chippewa treaty explicitly terminated various hunting and fishing
rights.
Since the format of the Chippewa treaty was more
often used, the Chippewa verdict is expected to have the
greater impact. Following that precedent, the Washington
Court of Appeals in Spokane on September 23 upheld an 1855
treaty in overturning the conviction of former Yakima tribe
police chief Joe Young for allegedly poaching two bull elk in
January 1996. Young is now security director for a Yakima
tribe gambling casino.
In June, however, the Washington Supreme Court
ordered reinstatement of charges against Nooksack tribe member
Donald Ray Buchanan for allegedly poaching two elk in the
Oak Creek Wildlife Area, west of Yakima, during 1995.
Buchanan claimed a right to hunt there under the same 1855
treaty. The Washington Supreme Court overturned two lower
court rulings in finding no evidence that the Nooksack ever
hunted in the Oak Creek region. Buchanan, who was rearraigned
on September 8, indicated that he would try to take
the case to the U.S. Supreme Court.
Other cases • Sea Shepherd Conservation Society international
director Lisa Distefano and crew member Allison Lance, former
Sea Defense Alliance personnel Jonathan Paul, J a c o b
C o n r o y, and Joshua Harper, and Oregon schoolteacher
Cheryl Rorabeck-Siler all pleaded innocent on October 1 in
Tacoma to federal charges of operating watercraft in a “negligent”
manner during May 1999 while trying to keep members
of the Makah tribe from killing a gray whale. Their arraignment
coincided with the first date on which the Makah held a
self-issued permit to kill up to four more gray whales on their
southern migration. (See page 13.) The hunt actually began on
October 14, American Cetacean Society Puget Sound chapter
president Joe Olson advised as ANIMAL PEOPLE went to
press.
• The National Marine Fisheries Service o n
October 1 seized management of Alaskan coastal fisheries to
insure that indigenous fishing rights guaranteed by treaty are
not impinged by Alaskan officials seeking to enforce a 1989
Alaska Supreme Court ruling that the 1980 federal A l a s k a
National Interest Lands Conservation Act violates a state
constitutional guarantee of equal access to fish and game. The
1980 federal law incorporated recognition of treaties signed
before 1959, when Alaska gained statehood. Indigenous hunting
on federal land has been managed by the U.S. Fish and
Wildlife Service since 1985.
• The National Park Service is reportedly close to
completing biological and anthropological studies which are
expected to recommend that the Hoonah Tlingits should be
allowed to resume seal hunting and seagull egg gathering in
Glacier Bay National Park, Alaska.
• The National Park Service under reported pressure
from Interior Secretary Bruce Babbitt on September 30
withdrew a policy barring members of the Hopi tribe from capturing
golden eagle chicks at Wupatki National Monument,
near Flagstaff, Arizona. The eaglets––sacred to the rival
N a v a j o––are killed in religious rites. Permits for the capture
are granted annually by the U.S. Fish and Wildlife Service.
• InterTribal Bison Cooperative executive director
Tim Wapato told media that tribes which claim hunting rights
within Yellowstone National Park may seek to hunt bison
there to thin the herd. Legal hunting last occurred in
Yellowstone in 1967. The InterTribal Bison Cooperative is
also seeking to relocate to various reservations any bison who
wander out of the park into Montana.
• Sandra Shook, a longtime critic of special hunting
and fishing privileges granted by the state of Montana to the
Confederated Salish and Kootenai Tribes, on August 24
pleaded guilty to a misdemeanor charge of illegally shooting a
deer on the Flathead Reservation. According to M i s s o u l i a n
reporter John Stromnes, “The plea seemed carefully planned
to preserve her right to appeal to the Montana Supreme Court
on constitutional grounds. Shook said she plans to appeal as
soon as she finds a new lawyer,” following the resignation of
Lisa Kauffman, who represented her at the local level

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