Crow Tribe of Indians v. Repsis, 94-8097
| Decision Date | 26 December 1995 |
| Docket Number | No. 94-8097,94-8097 |
| Citation | 73 F.3d 982 |
| Parties | CROW TRIBE OF INDIANS, Plaintiff-Appellant, and Thomas L. Ten Bear, Plaintiff, v. Chuck REPSIS, individually; Francis Petera, individually, Defendants-Appellees, Shoshone-Bannock Tribes, Northern Arapahoe Tribe, Northern Cheyenne Tribe, the Oglala Sioux Tribe, Eastern Shoshone Tribe of the Wind River Reservation, State of Montana, State of Colorado, State of Idaho, State of South Dakota, State of Utah, Amici Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Ronald P. Arnold, Senior Attorney General (William U. Hill, Attorney General, Mary B. Guthrie, Deputy Attorney General, Kristi T. Sansonetti, Special Assistant Attorney General, with him on the brief), Cheyenne, Wyoming, for defendants-appellees.
Dale T. White of Fredericks, Pelcyger, Hester & White, Boulder, Colorado (Bruce P. Badley of Badley & Rasmussen, P.C., Sheridan, Wyoming, with him on the brief), for appellant.
Jeanette Wolfley, Attorneys Office, Fort Hall, Idaho, on the brief for Amicus Curiae Shoshone-Bannock Tribes.
Joseph P. Mazurek, Attorney General, State of Montana (Clay R. Smith, Solicitor), Helena, Montana; Gale A. Norton, Attorney General, State of Colorado, Denver, Colorado; Alan G. Lance, Attorney General, State of Idaho, Boise, Idaho; Mark Barnett, Attorney General, State of South Dakota, Pierre, South Dakota; Jan Graham, Attorney General, State of Utah, Salt Lake City, Utah, on the brief for Amici Curiae States of Montana, Colorado, Idaho, South Dakota and Utah.
Marvin G. Amiotte, Pine Ridge, South Dakota, on the brief for Amicus Curiae Oglala Sioux Tribe; L. Robert Murray, Office of Tribal Attorneys, Wind River Reservation, Ft. Washakie, Wyoming, on the brief for Amicus Curiae Eastern Shoshone Tribe; Marc D. Slonim of Ziontz, Chestnut, Varnell, Berley & Slonim, Seattle, Washington, on the brief for Amicus Curiae Northern Cheyenne Tribe and Northern Arapaho Tribe.
Before KELLY and BARRETT, Circuit Judges, and O'CONNOR *, Senior District Judge.
The Crow Indian Tribe and Thomas L. Ten Bear (collectively referred to as "the Tribe") appeal the district court's order of October 25, 1994, Crow Tribe of Indians v. Repsis, 866 F.Supp. 520 (D.Wyo.1994), dismissing the Tribe's complaint for a declaratory judgment and injunctive relief based on alleged violations of its rights under the Treaty with the Crows, 1868, and the Unlawful Inclosures of Public Lands Act, 43 U.S.C. Secs. 1061-1066.
On November 14, 1989, Thomas L. Ten Bear, a Crow tribal member and resident of Montana, was cited by Chuck Repsis, a game warden employed by the Wyoming Fish and Game Department, for shooting and killing an elk on lands within the Big Horn National Forest without a Wyoming hunting license. Ten Bear was prosecuted and convicted of illegally killing an elk in violation of Wyo.Stat. Sec. 23-3-102(a). As part of his unsuccessful defense, Ten Bear argued that he had an unrestricted right to hunt in the Big Horn National Forest as "unoccupied lands of the United States" under Article 4 of the Treaty with the Crows, 1868.
In the Treaty of Fort Laramie with Sioux, etc., 1851, 11 Stat. 749, approximately 38.5 million acres of land in the present day states of Montana and Wyoming were identified as Crow territory. This territory included what is now the Big Horn National Forest. In 1868, the Treaty of Fort Laramie with Sioux, etc., 1851, was modified by the Treaty with the Crows, 1868, wherein the Tribe ceded much of its territory, including the area of the Big Horn National Forest.
Both treaties dealt with the right of the Tribe and its members to hunt within aboriginal tribal lands and on ceded land. Article 4 of the Treaty with the Crows, 1868, provided that:
The Indians herein named agree, when the agency house and other buildings shall be constructed on the reservation named, they will make said reservation 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 as long as peace subsists among the whites and Indians on the borders of the hunting districts.
Treaty with the Crows, 1868, 15 Stat. 649, 650 (emphasis added).
The Tribe initiated this action on January 6, 1992, against the State of Wyoming, the Wyoming Department of Game and Fish, the Wyoming Game and Fish Commission, and individual defendants Chuck Repsis, Director of the Wyoming Department of Game and Fish, and Francis Petera, Director of the Wyoming Game and Fish Commission (collectively referred to as "the State"). The Tribe sought a declaration that the treaties entered into between the Tribe and the United States in 1851 and 1868 reserved to the Tribe and its members the unrestricted right to hunt and fish on all "unoccupied land of the United States" in Wyoming, which the Tribe ceded in 1868, including but not limited to national forest lands. The complaint was subsequently amended to include an additional count seeking the removal of a six-mile long "elk proof fence" constructed by the State along the southern border of the Crow Indian Reservation on the grounds that the fence violated the Unlawful Inclosures of Public Lands Act (UIA), 43 U.S.C. Secs. 1061-1066, and the Tribe's treaty rights under the 1851 and 1868 treaties.
On February 4, 1992, the State filed a motion to dismiss the action based on the State's immunity from suit under the Eleventh Amendment. On June 11, 1992, the district court granted the State's motion to dismiss with respect to the State of Wyoming, the Department of Game and Fish, and the Game and Fish Commission on the grounds that the action against those defendants was barred under the Eleventh Amendment. However, the district court allowed the action to continue against the individual defendants.
On October 8, 1993, the district court heard oral argument on the State's and the Tribe's motions for summary judgment. On October 25, 1994, the district court entered its Decision Granting Defendants' Motion for Summary Judgment and Dismissing Case. The district court found that the Tribe's off-reservation hunting right was foreclosed by Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244 (1896). Crow Tribe, 866 F.Supp. at 522-24. The district court also found that the Tribe had no standing to bring an action under the UIA and that, in any event, no relief could be granted because the Wyoming Game and Fish Commission, rather than the individual defendants, constructed, owned, and maintained the fence. Id. at 524-25.
On appeal, the Tribe contends that: (1) its unrestricted right to hunt and fish on off-reservation ceded lands under the Treaty with the Crows, 1868, was not foreclosed by Ward v. Race Horse, and (2) it has standing and may maintain an action against Francis Petera, Director of the Wyoming Game and Fish Commission, for violations of the UIA. 1
The State contends that Race Horse controls; therefore, the Tribe's right to hunt which was reserved in the treaty was repealed by Wyoming's admission into the Union. In the alternative, the State contends that the Tribe has no right to hunt on the lands of the Big Horn National Forest because such lands are "occupied."
We review the grant or denial of summary judgment de novo, applying the same legal standard used by the district court under Fed.R.Civ.P. 56(c). Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir.1995) (citation omitted). "Summary judgment is appropriate when there is no genuine dispute over a material fact and the moving party is entitled to judgment as a matter of law," Russillo v. Scarborough, 935 F.2d 1167, 1170 (10th Cir.1991), but "we must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991).
The Tribe contends that the district court erroneously relied on Race Horse. The Tribe asserts that: (1) Race Horse is factually dissimilar to this case, and (2) the Supreme Court has overruled, repudiated and disclaimed each of the legal doctrines applied in Race Horse.
The Tribe asserts that Ward v. Race Horse is factually dissimilar from this action and, therefore, not controlling. The Tribe argues that: (1) the Court in Race Horse was concerned with the Fort Bridger Treaty of 1869 involving the Shoshone and Bannock Indians whereas this case concerns the Treaty with the Crows, 1868, and (2) in Race Horse, the petitioner argued that he was completely immune from state game laws whereas here the Tribe acknowledges that its right is subject to state game laws provided the State can show the regulation is needed for essential conservation purposes.
In Race Horse, the Court considered whether the language of the Fort Bridger Treaty of February 24, 1869, between the United States and the Bannock Indians that "they shall have the right to hunt upon the unoccupied lands of the United States so long as game may be found thereon" gave the Indians an unrestricted right to hunt in violation of Wyoming's game laws. 163 U.S. at 504, 16 S.Ct. at 1076. In formulating the issue, the Court stated that:
It is wholly immaterial, for the purpose of the legal issue here presented, to consider whether the place where the elk was killed is in the vicinage of white settlements. It is also equally irrelevant to ascertain how far the land was used for a cattle range, since the sole question which the case presents is whether the treaty made by the United States with the Bannock Indians gave them the right to exercise the hunting privilege, therein referred to, within the limits of the State of Wyoming in violation of its laws. If it gave such right, the mere fact that the State had created school districts or election districts, and had provided for pasturage on the...
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