Hanes v. State
| Decision Date | 31 December 1998 |
| Docket Number | No. M-97-1401,M-97-1401 |
| Citation | 973 P.2d 330,1998 OK CR 74 |
| Parties | 1998 OK CR 74 Stephen Eugene HANES, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
¶1 This case presents an issue of first impression: may the State of Oklahoma enforce its fishing regulations against a Cherokee Indian fishing at the water's edge on the west bank of the Neosho or Grand River 1 at the city park in Miami, Oklahoma? To answer this question, we address two issues on appeal: 1) whether the riverbed of the Neosho or Grand River at the city park in Miami, Oklahoma is within Indian country, and 2) whether the State may enforce its protective fishing regulations against a Cherokee Indian fishing outside Indian country. We hold the site in question is outside Indian country, and the State has the power to enforce its protective fishing regulations against a Cherokee Indian there. Judgment and sentence is affirmed.
¶2 Stephen Eugene Hanes, a Cherokee Indian, was convicted in a bench trial for Illegal Possession of a Game Fish and Taking Game Fish Illegally (29 O.S.1991, § 6-302) in Ottawa County District Court Case No. WL 95-425 (consolidated). His defense, that the State lacks jurisdiction to enforce its fishing laws against an Indian in Indian country, was rejected by the trial court which imposed a fine of ten dollars for each Count. The trial court suspended the sentence pending the outcome of appeal.
¶3 The parties stipulated to the operant facts at trial. Hanes was arrested April 19, 1995, as he fished from the water's edge on the west bank of the Neosho or Grand River at the city park in Miami, Oklahoma. One blue catfish was on his line and a second was in his pickup truck which was parked in the lot above the west bank of the river. State law prohibited catching blue catfish. Hanes is a member of the Cherokee tribe. The riparian upland west of the river at this point was once part of the Cherokee Nation and had been allotted to a Cherokee Indian and later conveyed in fee simple to the City of Miami, Oklahoma. The parties also stipulated the Neosho or Grand River at the city park is navigable.
¶4 On appeal Hanes argues the trial court erred as a matter of law in finding the riverbed is not within Indian country. This is a mixed question of law and fact, for we must examine federal law and interpret federal treaties to determine whether, on the facts of this case, Hanes may be convicted of a crime. See Hallowell v. U.S ., 209 U.S. 101, 28 S.Ct. 498, 52 L.Ed. 702 (1908). Mixed questions of law and fact are treated as questions of law on appeal, and so we review this issue de novo. Taylor v. City of Oklahoma, 782 P.2d 1363, 1365 (Okl.1989).
¶5 The United States Congress, which has plenary power over Indian matters, has defined Indian country as follows in 18 U.S.C. § 1151:
a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of way running through the reservation,
b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and
c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
¶6 Hanes concedes the riparian upland in question was allotted by the Cherokee Nation to an individual Cherokee tribe member in fee simple, and this land subsequently was conveyed in fee simple to the City of Miami. He does not claim the riparian upland is within Indian country. Rather, he argues the riverbed was granted to the Cherokee Nation by the United States, never allotted, and is retained by the Cherokee Nation today. If Hanes is correct, the riverbed is within Indian country as defined by 18 U.S.C. 1151(c).
¶7 None of the conveying instruments relevant to this case mention the riverbed. Therefore, the Court must apply well-established principles of interpretation to determine whether the United States conveyed an interest in the riverbed to the Cherokee Nation, and whether the principle chief of the Cherokee Nation conveyed an interest in the riverbed when he allotted 2 the riparian land. Well-settled law provides the interpretation of the United States' intent to convey a riverbed depends on whether the river is navigable. Absent language to the contrary, a riparian owner will be found to own the adjacent riverbed to the thread of the stream of non-navigable rivers. St. Paul & P.R. Co. v. Schurmeir, 7 Wall. 272, 287, 19 L.Ed. 74 (1868); Brown v. Huger, 21 How. 305, 320, 16 L.Ed. 125 (1858). Conveyance by the sovereign of any right to the bed of navigable waters, on the other hand, will not be inferred from a silent document, absent extraordinary countervailing circumstances. United States v. Holt State Bank, 270 U.S. 49, 55, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926).
¶8 At trial the parties stipulated the Neosho or Grand River is navigable. On appeal, the State asks to be relieved of the stipulation, which, it asserts, is contrary to fact. When navigability is asserted as the basis of a right arising under the Constitution or laws of the United States, the Supreme Court has held it is necessarily a question of federal law to be determined according to the general rule recognized and applied in the federal courts. United States v. Holt State Bank, 270 U.S. 49, 56, 46 S.Ct. 197, 199, 70 L.Ed. 465 (1926); Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 87, 43 S.Ct. 60, 64, 67 L.Ed. 140 (1922). We accept this characterization for purposes of appellate review, and relieve the State of its stipulation, for the parties lack the authority to enter into a binding stipulation on a question of federal law. We begin our analysis by determining de novo whether the Neosho or Grand River is navigable.
¶9 To determine whether the river is navigable, we have relied on physical and historical facts set forth in the Navigability Study, Grand (Neosho) River from Mouth to Headwaters of Pensacola Lake, a report to the Tulsa District Army Corps of Engineers in November, 1974, conducted under government contract by Parcher-Haliburton-Heiliger, Inc. (hereinafter, Navigability Study ). The Neosho or Grand River is a tributary of the Arkansas River. It rises in Morris County, Kansas, at Council Grove Reservoir and flows in a southeasterly direction approximately 480 miles to the Elk River in north-central Delaware County, Oklahoma. From this point, the Neosho or Grand River flows in a southerly direction approximately 104 miles to its confluence with the Arkansas River at Webbers Falls Lake in Muskogee County, Oklahoma. The city park in Miami is located at river mile 143.4 3 in Ottawa County in the northeast corner of Oklahoma.
¶10 Physical characteristics of the river channel have been determined by field studies and reconnaissance. From its mouth, to river mile 2.3 the channel is sufficient to accommodate barge traffic. Id. at 64. At river mile 3.3 the water level is only two feet deep at shoals, and then deepens to four feet or more to the Fort Gibson Dam at river mile 7.7. Above the dam, and to approximately river mile 40, barge and tow traffic is possible. Id. at 67. Above river mile 40, the channel becomes winding and shallow, and develops numerous gravel bars. Id. Past this point the channel again deepens and widens, and could accommodate commercial traffic to river mile 53.8. Above river mile 63.2, the channel becomes narrow and twisting, with mud banks and snags to approximately river mile 73, at which point the channel again becomes deep and well defined. The channel retains this characteristic until river mile 139 where it becomes narrower, shallower and more twisting until the first of numerous gravel bars, shoals and snags are encountered at approximately river mile 146." Id. at 72. The Navigation Study concludes:
In summary, to allow modern commercial barge navigation from approximately river mile 2.3 to the headwaters of Pensacola Lake [approximately river mile 154], considerable navigational improvement will be required, including extensive channelization, bank stabilization, widening and deepening of the existing Grand River channel over approximately 50% of its length, relocation of 20 bridge structures and numerous power lines, communications line and pipeline crossings, relocation of two existing low-water dams, lockage around three major dams and construction of at least four intermediate locks and dams to raise navigation traffic upriver. Additional dams might have to be constructed upstream to provide water to operate the upper reach of the navigation system, above river mile 135-145.
¶11 The historical record reveals the upper reaches of the Neosho or Grand River have been used for commercial travel. Researchers who compiled the Navigability Study consulted manuscript and archival collections of the Oklahoma Historical Society in Oklahoma City, the Federal Archive and Records Center at Fort Worth, Texas, the Missouri Historical Society in St. Louis Missouri, and the records of the Office of Indian Affairs for the Western Creek and Neosho Agencies as well as secondary sources of "accepted value." Id. at 61. They discovered the Neosho or Grand river was navigated prior to the Louisiana Purchase by French trappers, the Spanish, and Osage Indians. From 1802 until 1827 a trading post known as the Grand...
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