Judge Jennifer Sung, nominated by President Biden to the Ninth Circuit, wrote a unanimous decision that reversed a lower court and ruled that an Indian tribe could pursue its claim that Idaho officials had improperly denied them their right to hunt on unoccupied land as provided in a treaty with the United States. The court specifically rejected Idaho’s claim that the right applied only if the Indians lived on a reservation.The October 2023 decision was in Northwestern Band of the Shoshone Nation v Wooten.

 

What happened in this case?

 For years, the state of Idaho has tried to limit the hunting rights of the Shoshone Nation, a recognized Indian tribe, under an 1868 treaty with the US. Idaho has maintained that only Shoshone members who live on Indian reservations have an unrestricted right to hunt on vacant land under the Treaty. So in 1997, for example, Idaho charged two members of the Northwestern Band of the Shoshone Nation, who live in Idaho but not on a reservation, with illegally hunting big game out of season.

The two Northwestern Band members in that case, Shane and Wayde Warner, defended their actions in state court based on the 1868 treaty. But the Idaho courts rejected their defense and ruled that only Shoshone Indians who lived on reservations had hunting rights under the treaty.

The Northwestern Band then filed suit in federal court, seeking a declaration of their rights under the 1868 treaty. The district court dismissed the complaint as a matter of law, ruling that the state court interpretation of the treaty was correct. The Northwestern Band appealed to th Ninth Circuit.

How did Judge Sung and the Ninth Circuit Rule and Why is it Important?

Judge Sung wrote a unanimous opinion that reversed the lower court and ruled that the treaty protects the hunting rights of the entire Shoshone Nation, regardless of whether they live on reservations. The court sent the case back so the lower court could resolve other issues, but they clearly adopted the Northwestern Band’s interpretation of the 1868 treaty.

Judge Sung began by applying the Supreme Court’s standards for treaty interpretation. Courts should interpret treaty terms “as they would naturally be understood by the Indians,” with any ambiguities “resolved in favor of the Indians.” Courts must also consider the “larger context” of the treaty, including history, negotiations, and the “practical construction adopted by the parties.”

Based on these principles, Sung concluded that the Northwestern Band had correctly interpreted the treaties. The court noted that the Bureau of Indian Affairs had construed the treaty this way in response to a request from the Northwestern Band in 1985. Sung wrote that the district court clearly “misunderstands the treaty,” which “does not make maintenance of the Tribes’ reserved hunting rights contingent on permanent residence on a designated reservation.”

Judge Sung’s opinion is obviously important to the Northwestern Band and its treaty rights. In addition, her clear articulation of the standards that apply to treaty interpretation will help Indians in other cases in the Ninth Circuit, including Idaho, Alaska, Arizona, California, Hawaii, Montana. Nevada, Oregon, and Washington. The ruling also serves as another reminder of the importance of promptly confirming fair-minded Biden nominees like Judge Sung to our federal courts.