Court upholds state rule granting Tribal ceremonial hunting rights

07.29.2011 Ron Karten Culture, State government, Natural resources

The Oregon Court of Appeals issued a significant decision in favor of the Confederated Tribes of Grand Ronde on Wednesday, July 27, when it said that the state Fish and Wildlife Commission's rule authorizing ceremony hunting permits for Tribal members was valid.

The ruling came in response to a lawsuit filed by the Confederated Tribes of Siletz Indians, who argued that the rule exceeded the Fish and Wildlife Commission's statutory authority.

The Confederated Tribes of Grand Ronde was granted ceremonial hunting rights by the state Fish and Wildlife Commission in April 2008. The commission unanimously re-adopted the rule allowing the ceremonial hunting permits in October 2009.

The rule grants Grand Ronde Tribal members ceremonial hunting rights in the Trask Hunting Unit, which is north of Grand Ronde roughly between the coast and Forest Grove.

The rule was created to allow Grand Ronde Tribal members to hunt for fresh deer, elk and bear meat for important Tribal ceremonies and celebrations that occur outside of the state's regular big game hunting seasons.

The Siletz argued that creation of the ceremonial hunting rule exceeded the commission's statutory authority because the 1986 hunting and fishing agreement between the state and Grand Ronde Tribe had not been amended or modified.

The Fish and Wildlife Commission countered, saying it had broad statutory authority to authorize hunting and it was under that authority that the ceremonial hunting rule was adopted.

The Court of Appeals agreed with the commission.

"The rule at issue in this case was promulgated following a joint proclamation from the Governor, the FWC chairperson and the Grand Ronde Tribes that called for the opportunity for the Tribe to harvest additional big game animals for Tribal ceremonial use," the ruling says. "Based on the text and context of the relevant statutes, we agree with FWC.

"(The Fish and Wildlife Commission) is charged by statute with the responsibility to 'implement the policies and programs of this state for the management of wildlife.'  Under that statute, FWC has broad authority to 'adopt such rules and standards as it considers necessary and proper to implement the policy and objectives … and perform the functions vested by law in the commission.' "

The Appeals Court also disagreed with the Siletz contention that the 1986 hunting and fishing agreement "is the exclusive expression of any Grand Ronde hunting rights or privileges" and "prohibits any hunting outside the express terms of the Agreement."

"The agreement text … does not support petitioner's argument," the Court of Appeals decision says. "The agreement does not by its terms limit the state's ability to allow for hunting by the Grand Ronde Tribes. Rather, (it) fully defines the Tribe's hunting rights and permits the state to regulate any hunting by the Tribe and its members not specifically allowed thereunder."

The Grand Ronde Tribe submitted a friend of the court brief in the case written by Tribal attorneys Kimberly D'Aquila and Lisa Bluelake.

The case was heard by Presiding Judge Darleen Ortega and judges Timothy Sercombe and Rebecca Duncan. Sercombe wrote the opinion.

Portland attorney Craig Dorsay, who represented the Siletz Tribe, said on Wednesday, July 27, that a decision on whether to appeal the ruling to the Oregon Supreme Court has not been made by his client.