The Coeur d'Alene Tribe is working to resolve disputes with Benewah County over tribal members hunting on private property, with both sides citing litigation as a last resort.
Discussions between the entities thus far have been spurred by a recent public meeting in Plummer over the issue. At the gathering, Idaho's U.S. Attorney confirmed there is no legal source spelling out whether the Tribe has the right to hunt and fish on all reservation land, including property it doesn't own.
"I think reasonable minds within each side are trying to come up with a solution," said Doug Payne, prosecuting attorney for Benewah County, who has been pressing to address citizens' complaints on the matter.
Idaho's U.S. Attorney Wendy Olson said on Tuesday that if either side wants an irrevocable answer, the issue must be resolved by litigation and a judge's decision.
"There is no source of controlling law on this issue," she said.
For that same reason, her office will not prosecute any tribal member for hunting on non-tribal property on the reservation, she said.
"Because of the lack of clarity as to whether it was trespassing or the proper exercise of tribal hunting rights," she said.
Olson has advised the two governments either sit down and sort out the issue, she said, or take it to court.
The latter option is trickier, she noted, as lawsuits can stretch for years without bearing fruit.
"If there was litigation, there's a chance that someone would not like the solution," she said.
Olson also said she disagrees with Payne's past insistence that the Tribe doesn't have the reserved right to hunt and fish on all reservation property, which he based off a 1960 opinion issued by a solicitor general with the Department of Interior.
That was only the viewpoint of the federal administration at the time, she pointed out.
"There have been Supreme Court decisions since that time that have expressed a different view," Olson said.
Payne said he disagrees with Olson's interpretation, as he believes the Supreme Court case she cited, Menominee Tribe v. the U.S., doesn't apply to this situation.
"The Tribe is wrong by matter of law and wrong as a matter of principle," he said.
But Payne is still encouraged by recent dialogue between county and the tribal officials, he said.
He wouldn't specify on what kinds of negotiations are happening because of the sensitive topic, but he expects the issue will take some direction over the next couple of weeks, he said.
"I think the Tribe also wants to solve this problem," said Payne, who has reported that citizens have contacted him about trespassing tribal hunters for over a decade.
A lawsuit will be the default choice, he added, if no progress is made.
"Litigation simply creates more questions," Payne said. "Hopefully we can figure out a way to negotiate something everyone agrees to."
The Tribe's ideal resolution, stated tribal spokesperson Helo Hancock, would establish "mutual respect for privacy, property and the practice of inherent sovereign rights, observed by all residents within the boundaries of the Coeur d'Alene Indian reservation."
To Hancock's knowledge, the Benewah County commissioners and tribal leaders have not met yet on the matter, but he expects such a meeting to be arranged soon.
"The fact of the matter is that tribal members have been hunting on this land for centuries," Hancock wrote in an email. "We have been doing so alongside our non-Indian neighbors for the last 100 years with very few problems."
Olson said her office and any other jurisdiction will prosecute any individuals who engage in violence over property disputes, be they tribal or non tribal.
Hancock emphasized that litigation on the issue would be costly and unnecessary.
"But the Coeur d'Alene Tribe has a very successful track record of vigorously defending our sovereign rights," he stated. "And this would be no different."