State v. Tinno, 10737

Citation497 P.2d 1386,94 Idaho 759
Decision Date08 June 1972
Docket NumberNo. 10737,10737
PartiesSTATE of Idaho, Plaintiff-Appellant, v. Gerald Cleo TINNO, Defendant-Respondent.
CourtUnited States State Supreme Court of Idaho

W. Anthony Park, Atty. Gen., and T. J. Jones, III, of Jones & Jones, Boise, Special Counsel for Idaho Fish and Game Department, for plaintiff-appellant.

Louis F. Racine, Jr., Racine, Huntley, Herzog & Olson, Pocatello, for defendant-respondent.

Joseph L. Coniff, Asst. Atty. Gen., of the State of Washington, for Washington State Dept. of Game, Olympia, Wash., Robert S. Lynch, Dept. of Justice, Washington, D. C., and Sidney E. Smith, U. S. Atty., Boise, for the United States of America, amici curiae.

McFADDEN, Justice.

Defendant-respondent Gerald Cleo Tinno, a duly enrolled member of the Shoshone-Bannock Tribes of Indians, resides on the Fort Hall Indian Reservation located near Pocatello. He was charged by a complaint with taking a chinook salmon with a spear from the Yankee Fork of the Salmon River in Custer County on July 16, 1968. Both spear fishing and taking salmon at that particular time and location were violations of state fishing regulations.

Trial of the charges was held before a justice of the peace. Respondent admitted the actions charged but as a defense alleged a superior federal right exempting him from the state fishing regulations based on the Treaty with the Eastern Band Shoshone and Bannock, of July 3, 1868, 15 Stat. 673 (hereinafter referred to as the Fort Bridger Treaty). Respondent was adjudged guilty and he appealed to the district court for a trial de novo.

At the non-jury trial in the destrict court, the parties entered into a stipulation of facts, accepted by the court, in which respondent admitted the acts complained of and in which the parties agreed that respondent is a member of the Indian tribe which is successor to the tribes signatory to the Fort Bridger Treaty. The prosecution offered exhibits A-O which were admitted, these exhibits consisting of copies of treaties, orders and agreements relating to the history of negotiations between the Shoshone and Bannock Tribes and the United States. The State then rested. Thereupon respondent moved for dismissal contending the exhibits established that he had a paramount right to fish in the manner and at the time and place set forth in the complaint. The motion was denied and respondent proceeded to call nine witnesses and to produce defendant's exhibit 1, extracts of certain Fort Hall Reservation historical recors.

After hearing the testimony and considering the documentary evidence the district court found that respondent was exempted by treaty right from the regulations in question and, therefore, was not guilty of the crime charged. This finding appears in the memorandum decision filed by the district judge which is treated as the judgment of the court. The State appeals from the judgment.

The initial issue determinative of the appeal for these parties concerns the application and effect of I.C. §§ 19-2801 1 and 19-2804. 2 These provisions and others govern the jurisdiction of this Court in appeals from criminal proceedings in the district courts. State v. Grady, 31 Idaho 272, 170 P. 85 (1918); State v. Anderson, 83 Idaho 263, 361 P.2d 787 (1961).

In this appeal respondent has not raised any issue concerning the State's right to appeal from a judgment in favor of a defendant in a criminal prosecution. No motion for dismissal has been filed. However, the question of this Court's jurisdiction to hear the matter was raised by brief and in oral argument by counsel for the United States. The question of jurisdiction, of course, is fundamental, and cannot be ignored once called to our attention.

We are constrained by I.C. § 19-2804 to hold that the appeal must be dismissed. In State v. Albertson, 93 Idaho 640, 470 P.2d 300 (1970), this Court faced a procedural record somewhat similar to that present before us here. In that case the parties had stipulated in the district court that defendant had done the acts complained of (failure to were a safety helmet while operating a motorcycle) and further, defendant waived any trial. The only question for the district judge was the constitutionality of the statute. The State appealed from an adverse ruling and this Court of its own accord decided to treat the appeal 'as being in effect an appeal by the State from a judgment for a criminal defendant on a demurrer to an information. I.C. § 19-2804(1).'

The instant case also involved an admission by defendant of the acts alleged. However, this cause was essentially tried, at least insofar as the defendants in concerned, with documentary and testimonial evidence being considered. All issues of fact were not resolved by the stipulation between the parties. To view the record differently would be to ignore the plain import of the proceedings and to distor the statute beyond recognition. The following rule set forth in State v. Grady, supra, applies:

"As a general rule the state has no right to a writ of error or to an appeal from a judgment in favor of defendant, whether upon a verdict of acquittal or upon the determination by the court of a question of law, unless it be expressly conferred by statute in the plainest and most unequivocal terms' (citations).' 31 Idaho at 274, 275, 170 P. at 86.

We are, of course, aware of the importance attached to this appeal and recognize the considerable effort of all parties spent in fully briefing the substantive issues in this appeal. We recognize, too, the uniqueness of the record established in this case. The relentless passage of time dims human memory; it removes knowledgeable witnesses who could best describe the historical facts necessary to an informed decision. It is reasonable to assume the dispute between the State and the Shoshone-Bannock treaty Indians over fishing regulations will be repeated so that eventually the matter must be resolved. These factors lead us to consider the matter substantively for the benefit of not only the State but also the members of the various Indian tribes.

This appeal encompasses several important issues relating to the effect of the Fort Bridger Treaty on Indian fishing right claims. 3

The issue which logically must be resolved first is whether the treaty provides for any fishing rights to remain with the Indians. The relevant treaty provision reads:

'Article 4. The Indians herein named agree, when the agency house and other buildings shall be constructed on their reservations named, they will make said reservations their permanent home, and they will make no permanent settlement elsewhere; but they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.' (Emphasis added.)

Nowhere in this quoted section or in other parts of the treaty does one find reference to the term 'fish' or 'fishing.' On this point the district court had the benefit of the expert testimony of Dr. Sven S. Liljeblad, a professor of anthropology and linguistics at Idaho State University, relating to the term 'to hunt' as the term was generically used in the languages of the signatory Indians. According to his testimony the particular Indian languages did not employ separate verbs to distinguish between hunting and fishing but rather used a general term for hunting and coupled this with the noun corresponding to the object (either animal or vegetable) sought. The Shoshone verb was 'tygi' while the corresponding Bannock term was 'hoawai'; both were defined as meaning 'to obtain wild food.' As Dr. Liljeblad explained, the English terminology when translated to those Indian leaders at the treaty negotiations would have been understood to encompass both 'fishing' and 'hunting' for game.

The State offered exhibit B, the notes of Brevet Major-General C. C. Augur, an Indian Peace Commissioner who negotiated the Fort Bridger Treaty. In those notes General Augur does state that the subject of 'hunting and fishing' was discussed during the negotiations. Those notes reflect the true concern of the tribal negotiators, recognized by the government agents, that the signatory Indians were facing a major change in their way of life and that their traditional food gathering would have to be insured in the future. The record also indicates that the Indians living on the Fort Hall Reservation, which was established pursuant to the Fort Bridger Treaty, entered into a subsequent agreement with the United States in 1898. 31 Stat. 672. That agreement related to the cession of certain Fort Hall Reservation lands to the United States. Article 4 of that agreement reads:

'So long as any of the lands ceded, granted, and relinquished under this treaty remain part of the public domain, Indians belonging to the above-mentioned tribes, and living on the reduced reservation, shall have the right, without any charge therefore, to cut timber for their own use, but not for sale, and to pasture their livestock on said public lands, and to hunt thereon and to fish in the streams thereof.' (Emphasis added.)

While this provision only relates to ceded reservation land, express mention of fishing rights does bear on the recognition of the off-reservation rights reserved in the earlier treaty. That is, it is significant that fishing is recognized as part of the Indian way of life even thirty years subsequent to the first treaty.

On this point the record shows that the Indians represented at the Fort Bridger negotiations were a rather diverse group in terms of geography and social or political allegiance. The two anthropologists who testified at the trial, Dr. Liljeblad, mentioned earlier, and Dr. Earl H. Swanson, Jr., also a professor at Idaho State University, stated the various tribes or bands were in fact rather loosely knit units, and individual families freely changed their associations from...

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26 cases
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    • United States
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    ...404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974); People v. LeBlanc, supra; State v. Tinno, 94 Idaho 759, 497 P.2d 1386 (1972). The factual predicate giving rise to the reservation or retention of the right to fish in the Great Lakes is a showing ......
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