United States v. Finch, CR-74-25-BLG.

• Decision Date: 09 April 1975
• Docket Number: No. CR-74-25-BLG.,CR-74-25-BLG.
• Citation: 395 F. Supp. 205
• Parties: UNITED STATES of America, Plaintiff, v. James Junior FINCH, Defendant.
• Court: U.S. District Court — District of Montana

395 F. Supp. 205

UNITED STATES of America, Plaintiff, v. James Junior FINCH, Defendant.

No. CR-74-25-BLG.

United States District Court, D. Montana, Billings Division.

April 9, 1975.

Otis L. Packwood, U. S. Atty. for the District of Montana, Billings, Mont., for plaintiff.

Robert W. Holmstrom, Billings, Mont., for defendant.

Cate, Lynaugh, Fitzgerald & Huss, Billings, Mont., for amicus curiae Crow Tribe of Indians.

Clayton L. Herron, Helena, Mont., for amicus curiae Montana Fish and Game Commission.

MEMORANDUM OPINION AND ORDER

BATTIN, District Judge.

The information filed herein on May 16, 1974, charges:

"That on or about May 5, 1974, in the District of Montana, JAMES JUNIOR FINCH, within the exterior boundaries of the Crow Indian Reservation, did without lawful authority or permission and for the purpose of fishing thereon, unlawfully and knowingly go upon land identified as located in Section 8, Township 5 South, Range 32 East, M.P.M., Big Horn County, Montana, being a portion of the Big Horn River. The said JAMES JUNIOR FINCH was standing upon land belonging to the State of Montana for the benefit and use of its State Fish and Game Commission, while fishing in said Big Horn River, said river being Indian trust land, closed to hunting and fishing to all non-Crow citizens, all contrary to the provisions of 18 U.S.C. 1165."

On June 14, 1974, the defendant filed a motion to dismiss said information. The parties submitted extensive and well-considered memoranda of law. On September 4, 1974, an order was filed wherein I denied the motion to dismiss and noted that the information was sufficient on its face. An Agreed Statement of Facts and additional memoranda of law have been filed. Additionally, counsel for the Crow Tribe of Indians and the State of Montana, Department of Fish and Game, have appeared herein as amici curiae.

After a thorough review of the file, I am compelled to reconsider my order dated September 4, 1974, wherein I denied defendant's motion to dismiss. I conclude that the information is not sufficient on its face for several reasons.

First, the defendant is charged with a violation of 18 U.S.C.A. § 1165, which reads as follows:

"Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited."

An essential element to the offense charged against the defendant herein and as defined by 18 U.S.C. § 1165 is that the defendant go upon "any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States."

I have previously held that the portion of the Big Horn River bed in question is held by the United States in trust for the Crow Tribe of Indians. Order of this Court dated September 4, 1974, in the case now at issue, and United States v. Haug and Mill, D.Mont., Billings Div., Misc.Crim. No. 511 (June 9, 1971) see appendix. After a further review of the pertinent treaties and the nature of the Tribe's title, I have concluded otherwise and by this memorandum opinion and order specifically overrule my holding in these two cases.

The title of the Crow Tribe to a large area (which now includes their present-day reservation) was recognized by the Treaty of Fort Laramie, signed in 1851. 11 Stat. 749, II Kapp. 594. Article 5 of that treaty reads in pertinent part:

"The aforesaid Indian nations do hereby recognize and acknowledge the following tracts of country, included within the metes and boundaries hereinafter designated, as their respective territories, viz:

* * * * * * "The territory of the Crow Nation, commencing at the mouth of Powder River on the Yellowstone; thence up Powder River to its source; thence along the main range of the Black Hills and Wind River Mountains to the head-waters of the Yellowstone River; thence down the Yellowstone River to the mouth of Twenty-five Yard Creek; thence to the head waters of the Muscle-shell River; thence down the Muscle-shell River to its mouth; thence to the head-waters of Big Dry Creek, and thence to its mouth.

* * * * * *

"It is, however, understood that, in making this recognition and acknowledgement, the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described."

The Treaty of Fort Laramie, 1851, involved some eight Indian Nations. The treaty's background has been thoroughly studied by the Courts and need not be exhaustively repeated here.¹ However, records reveal that

"* * * the Government sought to initiate treaty negotiations primarily to promote peace among these tribes, to protect settlers and other travelers along the Platte and Arkansas Rivers, and to help establish responsibility for any depredations that might be committed in a particular area." Sioux Tribe v. United States, Ct.Cl., 500 F. 2d 458, 464 (1974).

The Treaty of Fort Laramie, 1851, did recognize the Crow Indian title to the land described therein. See Crow Tribe of Indians v. United States, 284 F.2d 361, 371, 151 Ct.Cl. 281 (1960).

However, a reservation was not established until the enactment of the Treaty with the Crow Indians, 1868. 15 Stat. 649. See United States v. Powers, 9 Cir., 94 F.2d 783, 785 (1938). Under this treaty, the territory for the Crows was significantly reduced. Article II of that treaty reads as follows:

"The United States agrees that the following district of country, to wit: commencing where the 107th degree of longitude west of Greenwich crosses the south boundary of Montana Territory; thence north along said 107th meridian to the mid-channel of the Yellowstone river; thence up said mid-channel of the Yellowstone to the point where it crosses the said southern boundary of Montana, being the 45th degree of north latitude; and thence east along said parallel of latitude to the place of beginning, shall be, and the same is, set apart for the absolute and undisturbed use and occupation of the Indians herein named, and for such other friendly tribes or individual Indians as from time to time they may be willing, with the consent of the United States, to admit amongst them; and the United States now solemnly agrees that no persons, except those herein designated and authorized so to do, and except such officers, agents, and employés of the government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians, and henceforth they will, and do hereby, relinquish all title, claims, or rights in and to any portion of the territory of the United States, except such as is embraced within the limits aforesaid."

These two treaties were amended by later Acts which further reduced the size of the Reservation. See 22 Stat. 42, 26 Stat. 989, 33 Stat. 352, and 50 Stat. 884.

The Treaty of Fort Laramie was enacted in 1851, long before the passage of the Organic Act of the Territory of Montana in 1867. 14 Stat. 426.

Neither the Treaty of Fort Laramie of 1851 nor the Treaty with the Crow Indians of 1868 made specific reference as to the title of Big Horn River bed. It has been held that the Big Horn River is a navigable stream. See The Crow Tribe of Indians of Montana v. United States, D.Mont., Billings Div., Civil No. 214 (October 1, 1963). However, the general rule as to the disposal of beds of navigable streams is briefly stated in United States v. Holt State Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926):

"* * * The United States early adopted and constantly has adhered to the policy of regarding lands under navigable waters in acquired territory, while under its sole dominion, as held for the ultimate benefit of future States, and so has refrained from making any disposal thereof, save in exceptional instances when impelled to particular disposals by some international duty or public exigency. It follows from this that disposals by the United States during the territorial period are not lightly to be inferred, and should not be regarded as intended unless the intention was definitely declared or otherwise made very plain."

The question presented to the Supreme Court in the Holt State Bank case was the title to the bed of Mud Lake, which was formerly a navigable body of water within the forum Red Lake Indian Reservation. The Court concluded that title to the bed of the lake passed to the State of Minnesota on its admission into the Union. The Supreme Court stated:

"There was no formal setting apart of what was not ceded, nor any affirmative declaration of the rights of the Indians therein, nor any attempted exclusion of others from the use of navigable waters. The effect of what was done was to reserve in a general way for the continued occupation of the Indians what remained of their aboriginal territory; and thus it came to be known and recognized as a reservation. Minnesota v. Hitchcock, 185 U.S. 373, 389 22 S.Ct. 650, 46 L.Ed. 954. There was nothing in this which even approaches a grant of rights in lands underlying navigable waters; nor anything evincing a purpose to depart from the established policy, before stated, of treating such lands as held for the benefit of the future State." 270 U.S. 49,

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