Appeals court cites Penn State Law professor's work on Native American treaties

July 20, 2021

UNIVERSITY PARK, Pa. — The Oregon Court of Appeals cited the work of Penn State Law in University Park Assistant Professor Jacob Schuman in its recent decision to overturn the conviction of a member of the Yakama Nation for illegal hunting. The case, Oregon v. Begay, 312 Or.App. 647 (2021), revolved around the Yakama’s right to hunt on “open and unclaimed” land and how courts should interpret treaties signed with Native American tribes.

“This was an important case because it protects the hunting rights of the Yakama Nation based on a detailed analysis of the Yakama Treaty of 1855,” Schuman said. “The court held that ‘open and unclaimed’ land means land without ‘visible signs of ownership,’ because that’s how the Yakama would have understood those words in 1855. I’m glad the Oregon Court of Appeals found my article helpful in its decision to reverse the defendant's conviction and vindicate the Yakama's treaty rights.”

In the original case, a lower court had blocked the defendant, Wilson Begay, from arguing treaty protections in his defense, ruling that the 1855 Yakama Treaty did not apply to privately owned land. Without hearing arguments based on the treaty, the jury convicted Begay of a Class A misdemeanor for hunting wildlife on private property. In reversing that decision, the Appeals Court held that the “defendant was entitled to raise his treaty defense at trial; therefore the trial court erred when it granted the state’s motion in limine to prohibit defendant from doing so.”

In its decision, the Appeals Court cited Schuman’s argument that treaties must be interpreted carefully in light of the “cultural divide” between the tribes and the federal government at the time they were negotiated, including different languages and legal concepts.

“What I explained in my article is that treaty language must be interpreted both across time and across culture,” Schuman said. “Courts must understand what the terms of the treaty meant when it was signed in 1855 as well as what the terms of the treaty meant to the Yakama.”

Although Begay shot a deer on private property, the area was part of the Yakama’s traditional hunting grounds and there were no visible signs that the land was privately owned. These facts, the court argued, should have allowed Begay to argue his right to hunt in “open and unclaimed” land according to the Yakama Treaty. Read more details on the case at Law360 (subscription required).

Last Updated July 23, 2021