State v. Coffee

• Decision Date: 23 November 1976
• Docket Number: No. 12040,12040
• Citation: 97 Idaho 905,556 P.2d 1185
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Dianne C. (David) COFFEE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 1185

556 P.2d 1185

97 Idaho 905

STATE of Idaho, Plaintiff-Respondent, v. Dianne C. (David) COFFEE, Defendant-Appellant.

No. 12040.

Supreme Court of Idaho.

Nov. 23, 1976.

Neil O. Walter of Wilson & Walter, Bonners Ferry, John E. Echohawk, Boulder, Colo., for defendant-appellant.

Wayne L Kidwell, Atty. Gen., T. J. Jones, III, Sp. Asst. Atty. Gen., Boise, Randall W. Day, Pros. Atty. of Boundary County, Bonners Ferry, for plaintiff-respondent.

McFADDEN, Chief Justice.

Defendant-appellant Dianne C. (David) Coffee was charged by a criminal complaint with two counts; (a) killing a deer out of season in violation of I.C. § 36-1403, and (b) killing a deer with the aid of an artificial light in violation of I.C. § 36-1301. Following stipulation as to the facts, Coffee moved for a dismissal based on her claim that she is an Indian and has an aboriginal right to hunt free from state regulation. The trial court denied the motion to dismiss, and Coffee was convicted on both counts. This court affirms.

Prior to trial, the following facts were agreed upon in a stipulation executed by defendant's attorney, an attorney for the Native American Rights Fund, the Boundary County Prosecuting Attorney, and an assistant Attorney General. The defendant is a member of the Kootenai Indian Tribe, a non-treaty, non-reservation ¹ tribe recognized by the United States government. At about 8:50 p. m. on October 8, 1972, defendant shot and killed two white-tail deer on private property owned by Howe Farm in Bounday County, Idaho. The property where the deer were taken is located in the Kootenai Valley Drainage District #11, Boundary County, Idaho. On October 8, 1972, deer hunting season was closed in that area; at the time the two deer were killed, the sun had set and the deer were Although defendant stipulated to the facts constituting the offenses, she moved to dismiss the charges. In so moving, defendant contended that, as an Indian, she had an aboriginal right to hunt in the area traditionally occupied by her tribe without being bound by the game laws of the State of Idaho. Thus, she argued that she had committed no crime.

[97 Idaho 907] spotted and shot with the aid of artificial light.

On July 18, 1973, trial to the court was held in the magistrate court. In addition to the stipulated facts, the court received testimony from the defendant and from an expert in Kootenai Indian Anthropology. In its memorandum opinion, the court denied the defendant's motion to dismiss and found her guilty of the two counts. The defendant then appealed to the district court, which issued its memorandum opinion based on the record of the proceedings in the magistrate court. The district court affirmed the decision of the magistrate court. Appeal was then perfected to this court.

The following undisputed evidence was established at trial in the magistrate court. The defendant is an enrolled member of the Idaho Kootenai Indian Tribe. The Idaho Kootenai, frequently referred to as the Bonners Ferry Kootenai, is one of five separate and distinct tribes historically referred to as Kootenai Indians. The tribe is traditionally identified with the Kootenai River drainage system, and it occupied most of what is now the northern tip of Idaho and a portion of northwestern Montana. The occupancy by the Idaho Kootenai was relatively exclusive, but other tribes were allowed to hunt and fish on the land without trouble.

The area occupied by the Idaho Kootenai was used primarily for residence and subsistence. The tribe gained sustenance mainly from fishing, although hunting, berry picking, trapping and root digging were also imporant. Deer were often taken for food and other uses. Tribal hunting was regulated by individuals known as hunt-leaders; these persons supervised the hunting in accordance with religious and traditional mandates. The control of the hunt-leaders was not absolute, and individuals could hunt at any time if necessity so demanded. After a tribal hunt, food was shared among members of the tribe, thus insuring that those unable to hunt would receive food. The tribe hunted only when necessary and used all game which was taken. Hunting for sport was unknown.

In uncontroverted testimony, defendant stated that she was hunting for food when the two deer were killed. The game was to be distributed among ten persons in her household and several other needy persons in the community. Defendant testified that she has never hunted for sport, only for necessity. Tribal members today continue to consider hunting to be indispensible for economic and cultural reasons.

On July 16, 1855, a treaty was entered into between the United States and certain Indian tribes at Hellgate, Montana, in the Bitter Root Valley. The treaty was ratified by the Senate in executive session on March 8, 1859, and proclaimed by President Buchanan on April 18, 1859. 12 Stat. 975. The treaty was negotiated for the government by Gov. Isaac Stevens, and by headmen of the Flathead, Upper Pend d'Oreille, and 'Kootenay' tribes. Several 'Kootenay' Indians signed the treaty, including Chief Michelle, Gun Flint, Little Michelle, Paul See, and Moses. Apparently none of those claiming to represent the 'Kootenay' were members of the Idaho Kootenai, and that separate tribe was not represented at the treaty negotiations or by signature. Nonetheless, the land ceded by the Indians in the treaty included the Kootenai River drainage system, the area occupied by the Idaho Kootenai.

Subsequently, in 1957, the United States Indian Claims Commission considered the various aspects of ownership of the land and the right of the Idaho Kootenai to compensation in Kootenai Tribe or Band of Indians of the State of Idaho v. United States, Docket No. 154. In an opinion The issue presented in this case is whether present-day Kootenai Indians have a right to hunt on private land, free from state regulation. In disposing of this issue, we consider whether there was an aboriginal right to hunt, whether the right survives today and if so on what terms, and whether defendant Coffee was properly exercising existing rights so as to be protected from state regulation.

[97 Idaho 908] published at 5 Ind.Cl.Comm. 456 (1957), the Commission found that although the Idaho Kootenai were not parties to the treaty, Indian title to the land had nonetheless been extinguished by the United States with the ratification of the Hellgate treaty by the Senate in 1859. The Commission then ruled that the tribe was entitled to compensation for the value of the land as of 1859. The Commission later accepted an agreement between the Kootenai and the Government settling the ownership and compensation questions. 8 Ind.Cl.Comm. 504 (1960). These decisions will be discussed in more detail later. The case was for a time consolidated with and later separated from a claim of the Confederated Salish and Kootenai Tribes of the Flathead Reservation (a different Kootenai band), discussed at 8 Ind.Cl.Comm. 40 (1959); that Commission opinion is not relevant to the instant case.

THE ABORIGINAL RIGHT

The concept of aboriginal title is well established.

'(T)he right of sovereignty over discovered land was always subject to the right of use and occupancy and enjoyment of the land by Indians living on the land. This right of use and occupancy by Indians came to be known as 'Indian title.' It is sometimes called 'original title' or 'aboriginal title" Sac and Fox Tribe v. United States, 383 F.2d 991, 997 (Ct.Cl. 1967), cert. den. 389 U.S. 900, 88 S.Ct. 220, 19 L.Ed.2d 217 (1967).

We find a paucity of opinions on the subject of whether the rights to hunt and fish are included among the rights of aboriginal title.

Aboriginal title was founded on the notion that Indian occupancy and use of the land prehistorically predated the present sovereign. Justice demanded that until some more compelling exigence was recognized, the Indian should be allowed to continue his way of life on his traditional tribal lands. Thus, the aboriginal title was more than just a right to remain camped on the land. It was a right to continue, at least temporarily, a way of life. To the extent that hunting or fishing was an integral part of the Indian's way of life prior to the coming of the white man, it became a part of the way of life allowed to continue after establishment of the sovereign. Thus, hunting and fishing rights are part and parcel with aboriginal title. In Pioneer Packing Co. v. Winslow, 159 Wash. 655, 294 P. 557 (1930), the court held that Indians own reservation fish 'by the same title and in the same right as they owned them prior to the time of the making of the treaty.' Further, treaties provide for retention by the Indians of hunting and fishing rights, both on and off the reservation, indicating that hunting and fishing rights are a part of the aboriginal title which may be ceded by treaty or reserved by the Indians.

Respondent attempts to refute this proposition on the authority of Tlingit and Haida Indians v. United States, 389 F.2d 778, 182 Ct.Cl. 130 (1968). In Tlingit, the Court of Claims reversed an award of damages for the loss of exclusive fishing rights, holding, inter alia, that 'there are no fishing rights based on aboriginal ownership of the land * * *.' A close examination of Tlingit reveals that the court's conclusion lacks foundation. Although the court asserts that 'we have previously concluded that aboriginal fishing rights did not exist,' they failed to cite authority to support this proposition. Further, that conclusion appears to have been based upon the court's opinion that 'navigable waterways have never been the property of adjacent land owners,' and the court's reasoning would thus limit the decision to cases involving the taking of fish from navigable waterways. At any rate, this language is mere dicta since the right to compensation for loss of a right depends solely on whether there is a 'clear statutory directive creating a...