604 F.2d 1162 (9th Cir. 1979), 78-2917, United States v. State of Mont.

Docket Nº:78-2917, 78-2865.
Citation:604 F.2d 1162
Party Name:CA 79-2197 The UNITED STATES of America and the Crow Tribe of Indians, Montana, Appellants, [*] v. The STATE OF MONTANA, Montana State Fish and Game Commission, Willis B. Jones,Arnold Rieder, Arthur C. Hagenston, Joseph H. Klabunde, W. Leslie Pengelly, and Wesley R. Woodgerd, Appellees.
Case Date:June 12, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1162

604 F.2d 1162 (9th Cir. 1979)

CA 79-2197 The UNITED STATES of America and the Crow Tribe

of Indians, Montana, Appellants, [*]

v.

The STATE OF MONTANA, Montana State Fish and Game

Commission, Willis B. Jones,Arnold Rieder, Arthur

C. Hagenston, Joseph H. Klabunde, W.

Leslie Pengelly, and Wesley R.

Woodgerd, Appellees.

Nos. 78-2917, 78-2865.

United States Court of Appeals, Ninth Circuit

June 12, 1979

As Modified on Denial of Rehearing Sept. 20, 1979.

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Steven E. Carroll, Atty., U. S. Dept. of Justice (argued), Washington, D. C., for the U. S.

Urban L. Roth, Sp. Asst. Atty. Gen. (argued), Butte, Mont., for State of Mont.

Thomas K. Schoppert (argued), Lynaugh, Fitzgerald, Schoppert, Skaggs & Essman, Billings, Mont., for Crow Tribe of Indians.

Appeal from the United States District Court for the District of Montana at Billings.

Before SNEED and ANDERSON, Circuit Judges, and D. WILLIAMS, [**] District Judge.

SNEED, Circuit Judge:

This is an appeal by the United States and the Crow Indian Tribe (appellants)

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from a final declaratory judgment entered by the district court (D. Mont.) in an action brought against the State of Montana seeking to determine title to the bed of the Big Horn River within the exterior boundaries of the Crow Indian Reservation and to resolve certain questions regarding the authority to regulate the hunting and fishing activities of non-Indians and others not members of the Crow Tribe within the exterior boundaries of the reservation. We note jurisdiction under 28 U.S.C. § 1291, and reverse.

FACTS.

The Crow Indian Reservation is the remnant of a much larger tract of land recognized as Crow lands by the United States in the Treaty of Fort Laramie of 1851, 11 Stat. 749. In 1868, this original reservation was diminished from one of 38,531,174 acres to one of approximately 8,000,000 acres by the Second Treaty of Fort Laramie, 15 Stat. 649. Subsequent Congressional Acts have reduced the size of the reservation even further to its present acreage of approximately 2,282,764 acres. 1 The Big Horn River is a navigable watercourse that flows through the heart of the reservation from south to north.

The Treaties of 1851 and 1868 contain only two explicit references to hunting and fishing rights. Article 5 of the Treaty of 1851 states that the eight Indian nations signatory to the treaty "do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described." Article 4 of the Treaty of 1868 provides that the Indians "shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and as long as peace subsists among the whites and Indians on the borders of the hunting districts." Notwithstanding these scant references to the Crow Tribe's hunting and fishing rights, Article 2 of the Treaty of 1868 specifically describes the reservation as that place "set apart for the absolute and undisturbed use and occupation of the Indians."

Originally, all land within the reservation was held by the United States in trust for the Crow Tribe. No land could be transferred to non-Indians. The Allotment Acts of 1887 and 1920, 2 however, provided that patents in fee could be issued by the United States to individual Indian allottees. Once these patents were issued, the allottees could convey their land to non-Indians. At present, approximately 30% Of the land within the reservation is owned in fee. The great majority of the remainder is owned by the United States in trust either for individual Indians or for the Crow Tribe. 3

In 1973, the Crow Tribal Council passed Resolution 74-05 which prohibits hunting and fishing within the reservation by everyone other than members of the Crow Tribe. 4

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The State of Montana, however, as it has done in the past, continues to authorize hunting and fishing within the reservation by announcing the opening and closing of hunting seasons to all lands within the reservation and by issuing hunting and fishing licenses which purport to allow those not members of the Crow Tribe to hunt and fish within the reservation. This conflict between the State of Montana and the Crow Tribe concerning hunting and fishing within the reservation has resulted in this present action. 5

In the court below, appellants sought a judgment declaring that: (1) The United States holds title to the bed and banks of the Big Horn River within the exterior boundaries of the Crow Indian Reservation in trust for the Crow Tribe; (2) The Crow Tribe has authority to prohibit hunting and fishing within the reservation by those not members of the Crow Tribe; and (3) The State of Montana has no authority to regulate hunting and fishing within the exterior boundaries of the reservation. The district court held that: (1) The title to the bed and banks of the Big Horn River to the high water mark is held by the State of Montana; (2) The State of Montana has exclusive jurisdiction to regulate non-Indian hunting and fishing activities on the Big Horn River and all patented land owned by non-Indians within the exterior boundaries of the Crow Indian Reservation; (3) The State of Montana has concurrent jurisdiction with the United States to regulate non-Indian hunting and fishing activities on tribal or Indian lands if such activities are in violation of state law; (4) The Crow Tribe's exclusive rights of hunting and fishing within the reservation are limited to those lands set forth in 18 U.S.C. § 1165; and (5) The Crow Tribe has no authority to regulate non-Indian hunting and fishing activities within the exterior boundaries of the reservation, save in granting permission to non-Indians to trespass on tribal or Indian lands for the purpose of hunting and fishing. United States v. Montana, 457 F.Supp. 599, 611 (D.Mont.1978).

We reverse and remand to the district court with instructions to enter a judgment consistent with the holdings of this opinion. Our holdings are as follows:

That the title to the bed and banks of the Big Horn River to the ordinary high water mark situated within the exterior boundaries of the Crow Indian Reservation is held in trust by the United States for the use and benefit of the Crow Tribe of Indians.

That Resolution 74-05 adopted by the Crow Tribe, meeting in a duly held and noticed council, is a valid exercise of tribal power except insofar as it attempts to proscribe all hunting and fishing by those not members of the Crow Tribe (whether Indians or non-Indians) on fee patent lands on which such non-members reside.

That the Crow Tribe has the power to regulate hunting and fishing within the exterior boundaries of the Crow Indian Reservation by non-members of the Crow Tribe (whether Indian or non-Indian) subject to the following limitations:

(a) That the Crow Tribe lacks the power to impose criminal sanctions on non-Indians who violate its hunting and fishing regulations,

(b) That the exercise by the Crow Tribe of its power to regulate hunting and fishing by non-Indians must be within the constraints recognized by this court in Quechan Tribe of Indians v. Rowe, 531 F.2d 408 (9th Cir. 1976),

(c) That the regulation of hunting and fishing by non-members of the Crow Tribe (whether Indians or non-Indians) who reside on fee patent lands within the reservation, whether such hunting and

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fishing is done on such lands or elsewhere within the reservation, must be reasonable and consistent with sound principles of conservation.

That the State of Montana also has the power to regulate hunting and fishing within the exterior boundaries of the Crow Reservation by non-members of the Crow Tribe (whether Indian or non-Indian) subject to the following limitations:

(a) That such regulations of the State of Montana not regulate indirectly the hunting and fishing by members of the Crow Tribe.

(b) That such regulations of the State of Montana must have as their purpose the conservation and proper management of game and fish and not to discriminate against, nor to impede authorized regulation, by the Crow Tribe.

The authorities and reasons supporting these holdings are set forth in the balance of this opinion.

I.

BED AND BANKS OF BIG HORN.

We have previously considered the status of the title to the bed and banks of the Big Horn River within the exterior boundaries of the Crow Reservation. United States v. Finch, 548 F.2d 822 (9th Cir. 1976), Vacated, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977). 6 We held that to the ordinary high water mark the title to the bed and banks of the Big Horn is held by the United States in trust for the Crow Tribe. Although our judgment was vacated by the Supreme Court on grounds not related to the issue of title, we regard our holding in Finch as the applicable authority in this circuit. While recognizing that the issue is a close one, we again hold, as did Finch, that within the exterior boundaries of the reservation, the United States, not the State of Montana, holds the title and that that title is held in trust for the Crow Tribe.

II.

VALIDITY OF TRIBAL REGULATION 74-05.

The power of the Crow Tribe to exclude those not members of the tribe from hunting and fishing within the exterior boundaries of the reservation has its source in the treaties of 1851 and 1868. As already indicated, Article 5 of the Treaty of 1851 recognized that none of the Indians whose tribes were parties to the treaty surrendered "the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described." It was recognized in Crow Tribe of Indians v. United States, 284 F.2d 361, 151 Ct.Cl. 281 (1960), Cert. denied, 366 U.S. 924, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1960) that this provision permitted entry...

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