State v. Billie, 85-1539
| Decision Date | 26 September 1986 |
| Docket Number | No. 85-1539,85-1539 |
| Citation | 497 So.2d 889,11 Fla. L. Weekly 2068 |
| Parties | 11 Fla. L. Weekly 2068, 11 Fla. L. Weekly 2387 STATE of Florida, Appellant, v. James E. BILLIE, Appellee. |
| Court | Florida District Court of Appeals |
Jim Smith, Atty. Gen., Tallahassee, and Ann Garrison Paschall, Asst. Atty. Gen., Tampa, for appellant.
Michael L. Kobiolka, Hollywood, for appellee.
Dan R. Stengle, Gen. Counsel, Florida Game and Fresh Water Fish Com'n, Tallahassee, amicus curiae.
The state appeals the trial court's dismissal of an information against appellee James E. Billie. We have jurisdiction under Florida Rule of Appellate Procedure 9.140(c)(1)(A). We reverse.
The state's amended information charged that on December 1, 1983, in Hendry County, Billie "did unlawfully kill a member of Florida's endangered species as defined in Florida Statutes 372.072(3), to-wit: One Florida Panther, in violation of Florida Statutes 372.671...." Later, the state supplied a bill of particulars stating that the charged offense occurred on the Big Cypress Reservation.
Billie moved to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190. Judge James R. Adams, who was originally assigned to the case, denied the motion. The case was then assigned to Judge Hugh D. Hayes.
Subsequently, Billie filed a motion for rehearing attacking the trial court's subject matter jurisdiction. He contended that United States v. Dion, 752 F.2d 1261 (8th Cir.1985), supported his motion to dismiss on jurisdictional, as well as religious, grounds. At the hearing on the motion, the state stipulated that Billie was an enrolled member of the Seminole Indian Tribe, the incident occurred on the Seminole Reservation, and the record did not reflect that the panther was killed or used for commercial purposes.
On July 9, 1985, the trial judge dismissed the information saying that 18 U.S.C.A. § 1162 (1984) contained a savings clause preserving the Seminoles' hunting and fishing rights. The judge specifically adopted the principle in United States v. White, 508 F.2d 453 (8th Cir.1974), and United States v. Dion, 752 F.2d 1261 (8th Cir.1985), that Congress could not regulate on-reservation treaty rights through federal conservation laws without expressly abrogating such rights. Thus, the judge reasoned that the Federal Government did not have jurisdiction to protect endangered species on Indian reservations, and the state, therefore, could not have a greater authority than that given to it by the Federal Government. The trial judge further ruled that section 372.671 was merely a part of the state's civil-regulatory scheme over hunting and fishing and that the attachment of a criminal penalty to it did not make violation of the statute a crime.
At the outset, we reject the state's argument that the trial court erred in granting a rehearing on Billie's motion to dismiss. While the Florida Rules of Criminal Procedure do not authorize motions for rehearing, lack of subject matter jurisdiction is fundamental error which can be raised at any time, even at the appellate level. Page v. State, 376 So.2d 901 (Fla. 2d DCA 1979). Billie's motion for rehearing represents a challenge to subject matter jurisdiction; therefore, the trial judge correctly entertained the motion.
The state also seeks reversal of the trial court's order on two substantive grounds. First, it argues that the trial court erred in concluding that section 372.671 was a civil-regulatory rather than a criminal-prohibitory statute. Second, it contends that the court erred in effectively determining that the state lacked jurisdiction to prosecute Billie for the offense charged. We agree on both points.
We commence our discussion with some background material on the legal status of the Seminole Indians. In 1911, President Taft issued Executive Order No. 1379 creating the Big Cypress Indian Reservation for the Seminole Indians in southern Florida. Indian reservations created by such orders normally carry with them the same implicit hunting rights as do reservations created by treaties. United States v. Dion, --- U.S. ----, ---- n. 8, 106 S.Ct. 2216, 2223 n. 8, 90 L.Ed.2d 767 (1986); Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975). Therefore, the Seminoles unquestionably have traditional Indian hunting rights on the Big Cypress Indian Reservation.
The Indian Reorganization Acts of 1934 and 1935, 25 U.S.C.A. § 476 (1983), authorize Indian tribes on reservations to adopt constitutions and by-laws which must be ratified by the Secretary of the Interior or his authorized representative. Pursuant to these Acts, the Seminole Tribe adopted a constitution and by-laws which were ratified by the Secretary of the Interior in 1957.
Also, 18 U.S.C.A. § 1162 allows states to obtain jurisdiction over criminal offenses committed by or against Indians on Indian reservations. Former section 7 of this act granted states the right to assume such criminal jurisdiction by legislative enactment. See 67 Stat. 590 (1953). Florida assumed this jurisdiction by enacting section 285.16, Florida Statutes (1961). 1 Although section 7 of 18 U.S.C.A. § 1162 was repealed in 1968, 2 the cession of jurisdiction to Florida was not affected. Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (5th Cir.1981). Thus, Florida's assumption of criminal jurisdiction over Indian reservations remains in full force and effect.
In our analysis of whether section 372.671, Florida Statutes (1983), is criminal and prohibitory in nature, or whether it is merely regulatory, we first note that section 372.671 makes it a felony of the third degree for any person to kill a Florida panther. The maximum term of imprisonment for a third-degree felony is five years. § 775.082(3)(d), Fla.Stat. (1983).
Billie cites the fifth circuit's opinion in Seminole Tribe of Florida v. Butterworth, 658 F.2d 310 (5th Cir.1981), for the proposition that the inclusion of penal sanctions in a statute does not automatically classify it as criminal. There, the fifth circuit held that section 849.093, Florida Statutes (1981), permitting bingo games to be played by certain qualified organizations subject to state restrictions was a civil-regulatory statute which could not be enforced against the Seminole Indians pursuant to Bryan v. Itasca County, 426 U.S. 373, 96 S.Ct. 2102, 48 L.Ed.2d 710 (1976). 658 F.2d at 313. The fifth circuit found that the statute as originally enacted contained no penal sanctions, indicating "a legislative intent that the statute be construed as regulatory." 658 F.2d at 314 n. 6. Finally, it did not appear to the court that bingo contravened the public policy of the state of Florida, since it fell into a category of gambling that the state had chosen to regulate rather than proscribe. See 658 F.2d at 316.
Of course, section 372.671 does not regulate the killing of panthers. Rather, it makes it unlawful for any person to kill a Florida panther, an endangered species. In addition to outlawing the killing of the animal, the legislature has created the Florida Panther Research and Management Trust Fund, including expenditures for educating the public "concerning the value of the panther and the necessity for panther management." § 372.672, Fla.Stat. (1983); see also § 372.072(2), Fla.Stat. (1983). Thus, we believe the legislature clearly intended section 372.671 to be a criminal-prohibitory statute.
We now turn to the state's second substantive argument. The court's reason for determining that the state lacked jurisdiction to prosecute Billie appears grounded on the proposition that federal law has preempted the field of legislation regarding Indian hunting rights. This preemption argument is founded on three grounds: (1) 18 U.S.C.A. § 1162(b), (2) the eighth circuit's decisions in Dion and White, and (3) the Endangered Species Act, 16 U.S.C.A. § 1531, et seq. (1985). We address each ground in turn.
First, 18 U.S.C.A. § 1162(b) provides an exception for state jurisdiction of offenses committed by Indians:
(b) Nothing in this section shall authorize the alienation, encumbrance, or taxation of any real or personal property, including water rights, belonging to any Indian or any Indian tribe, band, or community that is held in trust by the United States or is subject to a restriction against alienation imposed by the United States; or shall authorize regulation of the use of such property in a manner inconsistent with any Federal treaty, agreement, or statute or with any regulation made pursuant thereto; or shall deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.
Billie argues that, pursuant to this subsection, the state lacks authority to oversee the taking of panthers because any attempt to do so would infringe on his traditional hunting rights. Thus, he concludes that he could not be charged with the unlawful killing of a Florida panther. We agree that this subsection allows Billie to hunt game on the reservation; however, the United States Supreme Court has said that an Indian's right to hunt pursuant to executive order can be regulated by the need to conserve a species. See Washington Game Department v. Puyallup Tribe, 414 U.S. 44, 49, 94 S.Ct. 330, 334, 38 L.Ed.2d 254, 258 (1973) (Puyallup II ); see also Puyallup Tribe v. Washington Game Department, 433 U.S. 165, 175, 97 S.Ct. 2616, 2622, 53 L.Ed.2d 667, 676 (1977) (Puyallup III ).
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