Laura Lundquist

(Missoula Current) In a tie vote, the Legislative Environmental Quality Council did not support a proposed ballot initiative that would allow those who own property on Indian reservations to hunt deer, elk and black bear on their property.

In a rushed meeting Wednesday, the Environmental Quality Council heard public comment on proposed ballot Initiative 193 and then voted on whether to lend support to the initiative. A tie vote doesn’t count as support.

The initiative, proposed by two men who live on the Flathead Reservation, would allow property owners to kill deer, elk and black bear on their property as long as they had proper state hunting licenses and followed all state regulations and bag limits.

Currently, tribal sovereignty gives only tribal fish and wildlife agencies the authority to issue big game hunting licenses and regulate hunting within reservation boundaries.

Rick Scheoning, a retired Fish, Wildlife and Parks warden from Polson, said he wrote the initiative to “fix a wrong,” because Montanans could hunt on their property until 1950.

“It’s a political boundary that prevents the owners of 3.3 million acres the opportunity to harvest a deer or elk on their land,” Scheoning said. “I’m just trying to reopen these properties.”

However, since 1950, several laws and court cases have reasserted tribal sovereignty including the 1975 Indian Self-Determination and Education Assistance Act.

Coincidentally, also on Wednesday, President Joe Biden signed an executive order reforming federal funding and support for tribal nations to further promote tribal self determination.

The only other supporter of the initiative, state Rep. Joe Read, R-Ronan, said the initiative was necessary for people like him who had issues with elk in their hay fields. Read didn’t explain why black bears were included in the initiative.

“My goal is not to institute something that’s going to be disharmonious to the state in general, but at the same point in time, I do believe that private property owner rights should be treated the same across the whole state,” Read said. “I have constantly called the tribal fish and game - could they please, please send some hunters to my property because of the predation on my alfalfa fields. Just a small snippet of a solution to this is to all property owners to hunt constitutionally on our own private property.”

In 2021, Read sponsored House Bill 241, which would have allowed the same thing, but the House Fish and Wildlife Committee tabled the bill after hearing strong opposition from Montana’s tribal nations.

On Wednesday, several members of the Confederated Salish and Kootenai Tribes were among the 15 who testified in opposition. Most of the EQC discussion centered on the Flathead Reservation.

Patrick Yawakie of the Flathead Reservation People’s Food Sovereignty Program said his program harvests problem deer and elk on the reservation for the tribal food bank. He reminded legislators that the Laramie and Hellgate treaties originally delineated lands, including eventual reservations, for the exclusive use of tribes. But then the Dawes Act of 1887 broke reservations into allotments and the Interior Department eventually sold any allotment not claimed by tribal members to whites as “fee-simple” land.

“It is the effect of allotment that we’re dealing with here,” Yawakie said.

Rich Janssen, CSKT Natural Resource Department head, said he lives next to Read but “he has never asked me to hunt on his land to help with his deer.”

CSKT Tribal Council Chair Tom McDonald, who was the former director of the CSKT Fish and Wildlife Division, said the initiative threatened more than 70 years of precedent and a good working relationship with the state of Montana and FWP. It also threatened the federal funding the tribes receive from the Pittman-Robertson fund which aids wildlife management and research, and the Dingle-Johnson fund, which helps with fisheries management.

“To have a singular event like this turn Montana into Texas is a critical wrong, and it makes it very difficult for us to manage that resource in a thoughtful way,” McDonald said. “If it comes to the time when we want to utilize private landowners, that needs to be done under our rules and regulations. And we will have that in our tool bag if it comes to it. We are very much not at that level right now.”

Evaro resident Jock Conyngham of the Montana Sportsmen Alliance said he bought his place on the Flathead Reservation with full knowledge that he wouldn’t be allowed to hunt big game on his property but he doesn’t feel limited. A tribal license still allows him to hunt and fish on the reservation.

CSKT staff attorney John Harrison said that the privilege of non-tribal members to hunt and fish could be rescinded if the initiative passes. The privilege is the result of a stay in the “Kool” lawsuit, where the tribes argued that they, and not the state, have jurisdiction over wildlife on the reservation. That led to a 2010 agreement between the tribes and the state, which also allows fishing on the south end of Flathead Lake.

“That question has not been resolved. And we’re hoping not to litigate that,” Harrison said. “If big game hunting is allowed on fee-simple land, if the fishing and bird hunting agreement was ended - which would be a policy decision by the tribal leadership - I have every expectation that the Kool litigation would be resumed.”

The ECQ meeting was part of a relatively new law passed in 2021 that requires interim committees to evaluate ballot initiatives proposed for upcoming elections. Since this was the first initiative considered by the EQC since the law passed, committee members were a bit uncertain about their role.

Legislative research analyst Jason Mohr explained that their role was to hold a public hearing and then decide whether to back the initiative. Their support or lack thereof would appear on the petition.

“You’re the last waypoint before signature gathering begins,” Mohr said. “It is not a stop-or-go decision today. You do not have the authority to stop this initiative; you are lending your view on it.”

When Rep. Marilyn Marler, D-Missoula, asked if the state-tribal relations committee was asked for input, Mohr said that committee wasn’t given the authority to review initiatives. Plus, the law gave committees only 14 days to consider each initiative and Wednesday is the deadline.

All eight Republican legislators voted to support the initiative, saying it was a private property rights issue. Some said people should be allowed to hunt on their property if they pay state property taxes.

“I’ll be a yes. One reason is I’m a big private property guy. The other reason I always hate the threat that somebody is going to sue us. Let ‘em sue us,” said Sen. Steve Hinebauch, R-Wibaux.

Rep. Jonathan Karlen, D-Missoula, pointed out that no state taxes fund FWP, so hunting shouldn’t be connected to property tax. He also said that FWP should have been part of the discussion since the initiative could affect wildlife management. Others were concerned that the initiative would open the door to allowing all landowners to hunt their land with little regulation.

Former state Sen. James Keane, D-Butte, said the eventual upshot is that when wildlife walks onto private land, it gives an advantage to the landowner, putting FWP management at a disadvantage.

“This really puts the ‘um’ in ‘dumb.’ It’s so self-serving that it’s unbelievable,” Keane said. “I’m glad that some of the representatives here think that the legal system needs more work and this will sure do it for them. It will be a very expensive way for the legal system to feather their expensive coffers.”

EQC citizen representatives Dave Galt, lobbyist and member of the Galt family which owns 260,000 acres in Montana; Jon Metropoulos, a Helena attorney who represented some Flathead irrigators opposed to the CSKT water compact; and former FWP commissioner Dan Vermillion joined the five Democratic legislators in voting against the initiative.

The initiative supporters must now gather signatures of at least 5% of the voters in each of 34 House districts to qualify for the ballot. They do so without Legislative support.

Contact reporter Laura Lundquist at lundquist@missoulacurrent.com.

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