State v. Begay

• Decision Date: 30 June 2021
• Docket Number: A169668
• Citation: 312 Or.App. 647,495 P.3d 732
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Wilson BEGAY, Defendant-Appellant.
• Court: Oregon Court of Appeals

312 Or.App. 647

495 P.3d 732

STATE of Oregon, Plaintiff-Respondent,

v.Wilson BEGAY, Defendant-Appellant.

A169668

Court of Appeals of Oregon.

Argued and submitted October 27, 2020.

June 30, 2021

John Evans, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

TOOKEY, J.

Defendant—who is a member of the Confederated Tribes and Bands of the Yakama Nation—killed a deer on a parcel of privately owned property, was convicted of unlawfully taking a game animal, ORS 498.002, and now appeals that judgment. His appeal requires us to consider the provisions of the Yakama Treaty of 1855 (the Treaty).

Before trial, defendant gave notice that he would assert as a defense his right to hunt on "open and unclaimed land" as provided in Article III of the Treaty. The state then moved in limine for an order prohibiting defendant from offering at trial any evidence, arguments, or jury instructions regarding his treaty defense. The trial court granted the state's motion, determining that the provisions of the Treaty—i.e. , defendant's right to hunt on "open and unclaimed land"—did not apply to the particular parcel where defendant killed the deer (the parcel).

On appeal, in his first and second assignments of errors, defendant challenges the trial court's pretrial ruling that prohibited him from raising his treaty defense and putting on evidence regarding that defense. In his third and fourth assignments of error, defendant challenges the trial court's refusal to give two jury instructions regarding the treaty defense. In his fifth assignment of error, defendant contends that the trial court erred in not granting his motion for judgment of acquittal. In his sixth and seventh assignments of error, defendant asserts that the trial court plainly erred in failing to sua sponte strike vouching testimony by a witness.

As explained below, we conclude that the trial court erred when it prohibited defendant from raising his treaty defense and from presenting evidence on that defense. Defendant should have been allowed to present his treaty defense at trial and to offer evidence of it. On that basis, we reverse and remand for a new trial. As to defendant's other assignments of error, the trial court did not err in refusing to give the requested jury instructions, insofar as they pertained to a defense that had not been tried (as a result of the court's pretrial ruling), and we decline to opine on the specific wording of the instructions that were offered under present circumstances. Similarly, as to the motion for judgment of acquittal, the trial court did not err in denying the motion, which was premised on the excluded treaty defense, and we express no opinion as to the merits of such a motion on a different record. Finally, we need not address the sixth and seventh assignments of error, as neither claim of error was preserved, making it likely that a different record may develop if the case is retried.

"We review the record to determine whether defendant presented any evidence to support the defenses he sought to assert and evaluate that evidence in the light most favorable to defendant." State v. Shields , 289 Or. App. 44, 46, 407 P.3d 940 (2017), rev. den. , 362 Or. 794, 416 P.3d 1102 (2018) (citation and internal quotation marks omitted). "The trial court may withhold an affirmative defense to a criminal charge from the jury only if there is no evidence in the record to support one or more elements of the defense." Id. at 47, 407 P.3d 940. Because defendant's assignments pertain to a pretrial ruling on the state's motion in limine , "we recount the pertinent evidence in the record as of the time that the court made those rulings." State v. Dart , 312 Or. App. 288, 289-90, 491 P.3d 813 (2021).

In accordance with that standard, we begin by recounting the relevant facts in the record. After that, we briefly explain the applicable canons of Indian treaty interpretation, after which we examine the Treaty's text and context, the circumstances of its negotiation, and the Yakamas’ cultural understanding of property occupancy in order to interpret the meaning of "open and unclaimed land" as used in the Treaty. Finally, with that interpretation in mind, we turn to examining whether the evidence in the record supports defendant's contention that the parcel was "open and unclaimed land," and thus, that he should have been allowed to raise his treaty defense at trial.

I. FACTUAL BACKGROUND

Defendant is an enrolled member of the Yakama Nation and has been a lifelong resident of Celilo Village, an unincorporated Native American community on the Columbia River in northeastern Wasco County. Defendant has been a fisherman and a hunter since he was eight or nine years old. In April 2017, defendant was tasked with gathering salmon and deer for the Yakamas’ seasonal First Foods Feast. Pursuant to that task, defendant killed and took a deer on a parcel of land located in Wasco County, southeast of the Dalles—an area in which the Yakama had traditionally hunted.

Shortly thereafter, Sergeant Vanderwerf, a supervisor for the Oregon State Police Fish and Wildlife division, began investigating defendant's taking of the deer, and he determined that the parcel was privately owned land. The landowner showed Vanderwerf the specific "kill site" within the parcel where defendant killed the deer. There, Vanderwerf found "evidence of the [deer's] blood and stuff."

As a result of Vanderwerf's investigation, defendant was charged with unlawfully taking a game animal, a violation of ORS 498.002.¹ Before trial, defendant filed a notice of his intent to rely on a defense that, as a member of the Yakama Nation, he had a right to hunt on "open and unclaimed land," as provided in Article III of the Yakama Treaty of 1855. In response, the state filed a motion in limine , asking the trial court "to prohibit defendant from offering evidence, arguments, and jury instructions at trial" relating to "the Treaty," "any rights under that Treaty," and "defendant's status as an enrolled member of the Yakama Tribe."

At a hearing on the state's motion, defendant testified that he "didn't open any fences or cross a fence" while hunting; that "There were no signs where I was hunting"; and that "If I see a sign that says no trespassing, then I don't go there." Defendant also testified that where he sees "signs of ownership," he will "find the owner and ask" before he hunts that area, explaining that "That's how *** we've always done things, work with people, talk with people."

Johnson Jay Meninick, the Cultural Resource Program Manager for the Yakama Nation, provided additional testimony regarding the Yakamas’ historical hunting grounds: "[O]ur tracks go clear into Burns, Oregon, into Canada, British Columbia. And we traveled all over, and we hunted buffalo up into Montana and Wyoming, the Teton Mountains. So our hunting area is broad." Meninick specified that the Yakama had "roamed the country [in] all different areas, both sides of the Columbia River, up in the high country, low country," including "the upland area of Wasco County and *** in the fields out in that region."

Also at that hearing, Vanderwerf testified about the parcel's location and physical characteristics: The privately owned parcel was located beside a county road in "a desolate farming area" of Wasco County. From "a topography standpoint," the parcel was "a downhill slope" with a "[f]airly decent grade." Vanderwerf testified that the specific "kill site" was located within the parcel, "in the neighborhood of 30 yards" downslope from the county road. Vanderwerf noted that "[t]here are no fences" on or surrounding the parcel, though there are "fences relatively nearby"—one "across the road from the [kill site]," and another "several hundred feet" further downslope from the kill site. Vanderwerf further testified that "[t]here were no signs" near the parcel indicating it was private property; "there were no buildings" on the parcel, though he saw "a silo or something" in "the far, far distance"; "there were no vehicles" parked in the parcel; and the parcel "wasn't planted," and it was "not cultivated." According to Vanderwerf's testimony, the parcel had a grass "stubble" and sagebrush on it, and it was "just an open field."

After the hearing, the trial court granted the state's motion in limine , and its order explained, in its entirety, that

"Defendant's proposed special jury instructions will not be submitted to the jury. The provision of the 1855 Treaty does not apply to this privately owned land, and the proposed instructions are not accurate statements of the law."

Consequently, defendant's case was presented to a jury without any evidence, arguments, or jury instructions regarding his treaty defense, and defendant was ultimately convicted for one count of unlawfully taking wildlife, ORS 498.002.

On appeal, defendant challenges his conviction, contending that "the trial court erred when it prohibited him from asserting a treaty defense," that "The Yakama Treaty safeguards the right of the Yakama Nation to hunt on ‘open and unclaimed land,’ " and that "the Yakama Nation would have understood ‘open and unclaimed land’ to refer to land that bore no visible indicia of ownership—that is, land that had no fences, cultivated fields, buildings, signs, or other such landmarks." In response, the state contends that "the parties to the 1855 treaty would not have considered the parcel to [be] ‘open and unclaimed land,’ when the parcel had indications of private ownership"—namely,

(1) "The [parcel] had been in private ownership by [the landowner's] family since the 1880s"; (2)

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