State v. Buchanan
| Citation | 978 P.2d 1070,138 Wn.2d 186 |
| Decision Date | 17 June 1999 |
| Docket Number | No. 66054-9,66054-9 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Donald Ray BUCHANAN, Respondent. |
Christine Gregoire, Attorney General, Robert Costello, Asst., Olympia, Amicus Curiae on behalf of Washington State Department of Fish & Wildlife.
Joseph Coniff, Jr., Olympia, Amicus Curiae on behalf of Modern Firearm Hunters of Washington.
Ralph Johnson, Seattle, Amicus Curiae on behalf of Professor Ralph Johnson.
Kevin R. Lyon, Ronald J. Whitener, Olympia, Amicus Curiae on behalf of Squaxin Island Tribe.
Mason D. Morissett, Seattle, Amicus Curiae on behalf of Tulalip Tribes.
Bill Tobin, Vashon, Amicus Curiae on behalf of Nisqually Indian Tribe.
Phillip E. Katzen, Allen H. Sanders, Seattle, Amicus Curiae on behalf of Sauk-Suiattle Tribe.
Eisenhower, Carlson, Newlands, Reha, Henriott & Quinn, Kathryn Nelson, Tacoma, Amicus Curiae on behalf of Skokomish Tribe.
Debra S. O'Gara, Tacoma, Amicus Curiae on behalf of Puyallup Tribe.
Mathews, Garlington-Mathews & Chesnin, Harold Chesnin, Seattle, Amicus Curiae on behalf of Upper Skagit Tribe.
Raas, Johnson & Stuen, Daniel A. Raas, Bellingham, Amicus Curiae on behalf of Lummi Tribe.
Alix Foster, Allan E. Olson, LaConner, Amicus Curiae on behalf of Swinomish Indian Tribal Community.
John C. Sledd, Bremerton, Amicus Curiae on behalf of Suquamish Tribe.
Elizabeth Nason, Toppenish, Amicus Curiae on behalf of Bands of Yakima Indian Nation.
Jeffrey J. Bode, Bellingham, Amicus Curiae on behalf of Nooksack Tribe.
Robert L. Otsea, Jr., Seattle, Alan Stay, Auburn, Amicus Curiae on behalf of Muckleshoot Indian Tribe.
Jeffrey Sullivan, Yakima County Prosecutor, Kenneth L. Ramm, Deputy, Lauri Boyd, Deputy, Yakima, for Petitioner.
Law Offices of David S. Vogel, David Vogel, Seattle, for Respondent.
This is a criminal prosecution for illegal hunting of elk in the State-owned Oak Creek Wildlife Area. The defendant, a member of the Nooksack Indian Tribe, claims he has a treaty right to hunt elk in the Oak Creek Area, and that this right may not be restricted by state hunting regulations. The issues presented are (1) whether the geographic scope of the tribe's treaty right to hunt on open and unclaimed lands includes the Oak Creek Wildlife Area, (2) whether the Oak Creek Wildlife Area is open and unclaimed land, and (3) whether the tribe's treaty right to hunt outside the reservation was abrogated by Washington's admission to the Union "on equal footing" with the original states.
We reverse the dismissal of the criminal action and remand for trial. We hold that, on remand, the defendant may raise a treaty right to hunt as a defense to the criminal charges and may offer evidence in support of his position that the Oak Creek Wildlife Area is within the aboriginal hunting grounds of the Nooksack Tribe. We also hold that under the facts presented in this case, the Oak Creek Wildlife Area is "open and unclaimed" land within the meaning of the Nooksack's treaty. We decline, in this case, to reconsider prior case law on whether the equal footing doctrine applies to impliedly abrogate Indian treaty rights in Washington.
On January 6, 1995, defendant Donald Buchanan was stopped by Department of Fish and Wildlife enforcement officers while Buchanan was hunting in the Oak Creek Wildlife Area, land which is owned and managed by the State of Washington. The defendant was in possession of two recently killed five-point, branch-antlered bull elks. At the time he was stopped, the defendant's Washington state hunting license had been revoked, and the Washington elk hunting season was closed.
The Oak Creek Wildlife Area, which is near Yakima, is open to the public at specified times each year for hunting, fishing and recreational purposes. During the fall and winter of 1994-95, state regulations permitted elk hunting in the Oak Creek Wildlife Area only from November 5 through 13, 1994. The number of branch-antlered elk that could be killed also was regulated during the hunting season, and only young "spike bulls" could be killed without a special permit. The purposes of the restrictions on elk hunting in the Oak Creek Wildlife Area are to maintain and manage the existing elk population. However, there is not an immediate threat to elk, as a species, in the Oak Creek Wildlife Area.
Defendant Buchanan is a resident of Kent, Washington, and a member of the Nooksack Indian Tribe. At the time he was stopped by Wildlife enforcement officers, he possessed both a Nooksack Tribe identification card and hunting tags issued by the Tribe. The Nooksack Tribe's reservation is located in Whatcom County, near Deming. The lands ceded to the United States by the Nooksack Tribe under the provisions of the Treaty of Point Elliott, 1 which is the treaty involved here, are bordered on the east by the summit of the Cascade range. The Oak Creek Wildlife Area is east of the territory ceded to the United States by the Nooksacks.
Defendant Buchanan was charged with two felony counts of possessing big game during a closed season, former RCW 77.16.020(1)(E), former RCW 77.21.010(1) (), and with one misdemeanor count of hunting while license is revoked. Former RCW 77.21.060(2). 2
Defendant Buchanan moved to dismiss the charges on the ground that State hunting regulations do not apply to hunters, like Buchanan, who are members of Indian tribes that have a treaty right to hunt on open and unclaimed lands. He claims the only regulations that govern his hunting on open and unclaimed lands are those of the Nooksack Indian Tribe.
The trial court granted the motion to dismiss the charges, ruling: (1) the language of the Treaty of Point Elliott does not restrict hunting to open and unclaimed lands within the area ceded by the Indians to the United States, but instead gives tribal members a right to hunt anywhere in the "Territory of Washington"; (2) the term "open and unclaimed lands" includes public lands, such as the Oak Creek Wildlife Area, which are put to uses compatible with an Indian hunting privilege; and (3) although Indian hunting privileges may be limited if necessary for conservation, the State, in this case, failed to demonstrate that application of State hunting regulations to treaty tribe hunters is necessary for conservation.
On appeal, the State challenged the trial court's conclusions and, additionally, argued that the Treaty of Point Elliott was abrogated by Congress when Washington was admitted to the Union on equal footing with the original states. The Court of Appeals affirmed and declined to consider the equal footing argument, as that issue was not presented to the trial court and was not asserted to be of constitutional magnitude. State v. Buchanan, 87 Wash.App. 189, 196, 941 P.2d 683 (1997), review granted, 134 Wash.2d 1012, 958 P.2d 316 (1998). This court granted the State's petition for review.
Several treaty tribes, including the Nooksack Tribe, have filed an amicus brief providing an overview of tribal management of off-reservation hunting by tribal members, a description of cooperative agreements governing wildlife management between tribes and between various tribes and the State, and further setting forth the tribes' position on the meaning of "open and unclaimed" lands. 3 Professor Ralph Johnson of the University of Washington School of Law has filed an amicus brief on the proper interpretation of the treaty language "open and unclaimed" lands. An amicus brief has been filed by the Department of Fish and Wildlife on the issues of the geographical scope of the treaty right involved and on the designation of the Oak Creek Wildlife Area as open and unclaimed lands during the winter months. Modern Firearm Hunters of Washington has filed an amicus brief in support of the State's equal footing argument.
Prior to oral argument in this court, the State filed a motion captioned, "Request for Judicial Notice or to Supplement the Record Under RAP 9.11." In its motion the State argues that defendant Buchanan should not be permitted to raise the defense that he has a treaty right to hunt because the Nooksack Tribe was not a signatory to the Treaty of Point Elliott. Defendant Buchanan responded to the motion and, additionally, moved for sanctions against the State, arguing the motion was frivolous and made for purposes of delay. Both motions were passed to the merits.
1. What is the geographic scope of the Nooksack Indian Tribe's treaty hunting right?
2. Is the State-owned Oak Creek Wildlife Area "open and unclaimed lands" within the meaning of the Treaty of Point Elliott?
3. Were those provisions of the Treaty of Point Elliott which conflict with the State's right to regulate off-reservation hunting abrogated
by Congress when Washington was admitted to the Union upon "equal footing" with the original states?
We begin by denying both the State's motion for judicial notice or to supplement the record and the defendant's motion for sanctions.
In its motion, the State first argues that this court should take judicial notice that the court lacks "subject matter jurisdiction" over defendant Buchanan's defense because the Nooksack Tribe was not a signatory to the Treaty of Point Elliott and Buchanan, therefore, has no treaty hunting rights.
The State's motion raises a new issue--that is, whether defendant Buchanan failed to prove a necessary element (the existence of a treaty) of his defense. The court generally will not consider issues which are not set forth in the petition for review, RAP 13.7(b), nor arguments raised for the first time on appeal. See, e.g., Hansen v. Friend, 118 Wash.2d 476, 485, 824 P.2d 483 (1992). However, this rule does not apply when the issue raised affects the right to maintain an action. Jones v. Stebbins, 122 Wash.2d 471, 479, 860 P.2d 1009 (1993). In this case, the State claims that defendan...
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