State v. Horseman

• Decision Date: 27 December 1993
• Docket Number: No. 92-491,92-491
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Ruben HORSEMAN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1110

866 P.2d 1110

263 Mont. 87

The STATE of Montana, Plaintiff and Respondent, v. Ruben HORSEMAN, Defendant and Appellant.

No. 92-491.

Supreme Court of Montana.

Submitted on Briefs Aug. 26, 1993.

Decided Dec. 27, 1993.

Lawrence A. LaFountain, Havre, for defendant and appellant.

Joseph P. Mazurek, Atty. Gen., Carol Schmidt, Asst. Atty. Gen., Helena, David G. Rice, Hill County Atty., Brian Lilletvedt, Sp. Prosecutor, Havre, for plaintiff and respondent.

WEBER, Justice.

This is an appeal from the Twelfth Judicial District Court, Hill County, affirming a charge of possession of an unlawfully killed game animal in violation of § 87-3-111(1), MCA, against Ruben Horseman. We affirm.

We restate the issues on appeal:

1. Did the District Court err in determining that Ruben Horseman, an enrolled tribal member of the Fort Belknap Indian Reservation had possession of an illegally killed bighorn sheep?

2. Did the District Court err in determining that it had jurisdiction to rule in Horseman's case?

3. Did the District Court properly conclude that no evidence was presented that demonstrated that any established Rocky Boy's Indian Reservation's extradition procedures were violated or that extradition was, in fact, required?

On October 21, 1990, Game Warden Mark Earnhardt (Earnhardt) of the Montana Department of Fish, Wildlife and Parks, observed a truck traveling west on a county road in Hill County. The truck had blood runs on the tailgate and was headed for the Rocky Boy's Reservation. Unable to pursue the vehicle because he was behind a locked gate, Earnhardt radioed Tribal Warden Matt Denny (Denny) on the Rocky Boy's Reservation for assistance in stopping the vehicle.

Both parties indicate that upon entering the reservation, Ruben Horseman (Horseman) was stopped by Denny who discovered a freshly killed bighorn sheep in the back of Horseman's suburban. Upon his arrival, Earnhardt issued Horseman citations for possessing an unlawfully killed bighorn sheep, transporting an unlawfully killed bighorn sheep and taking a bighorn sheep without a license.

These charges were brought in Justice Court for Hill County. Horseman's motion to dismiss the charge of taking of a bighorn sheep was granted by the court because Hill County was an improper venue for a crime committed outside of the county. The record indicates that the sheep was killed in Blaine County. The remaining two charges, possessing and transporting an illegally killed game animal were tried to a jury which found Horseman guilty of both charges on November 13, 1991. Horseman was fined $500, ordered to pay $2,000 restitution and had his hunting privileges suspended for thirty months.

Horseman appealed this judgment to the Twelfth Judicial District Court. He filed a pretrial motion to dismiss the charges against him. The District Court granted Horseman's motion to dismiss the charge of transporting an illegally killed game animal but denied dismissal of the charge of possession of such animal.

On July 17, 1992, Horseman entered a conditional plea of "guilty" pursuant to § 46-12-204, MCA, for the charge of possession of an unlawfully killed game animal in violation of § 87-3-111(1), MCA. Horseman's conditional plea contained three issues which were subject to appeal:

1. That he had the legal right to kill the animal pursuant to the 1855 Treaty between his tribe, the Gros Ventre, and the United States;

2. That he was unlawfully arrested on the Rocky Boy's Reservation; and

3. That he was unlawfully extradited from the Rocky Boy's Reservation.

The District Court accepted Horseman's plea and found him guilty of possession of an unlawfully killed game animal in violation of § 87-3-111(1), MCA, fined him $500 and suspended his hunting privileges until January 23, 1995. Horseman filed a notice of appeal on August 20, 1992.

I

Did the District Court err in determining that Ruben

Horseman, an enrolled tribal member of the Fort

Belknap Indian Reservation, had

possession of an illegally

killed bighorn sheep?

Horseman argues that 1851 and 1855 Treaties between the Gros Ventre Tribe and the United States reserved the tribal rights to hunt in traditional hunting grounds. According to Horseman, because he killed the sheep on federal land, he is not subject to State regulations.

The State argues that neither the 1851 or 1855 Treaty, nor any subsequent agreement affecting the Gros Ventre Tribe and the Fort Belknap Treaty, reserved a right for tribal members to hunt on ceded land, or other off-reservation land.

Generally, states have jurisdiction to regulate the wildlife within their borders. Baldwin v. Fish & Game Comm'n (1978), 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354. Tribal members are subject to these state laws when they are off-reservation, unless off-reservation hunting and fishing rights have been expressly reserved by the tribe when they ceded lands to the federal government. Oregon v. Klamath (1985), 473 U.S. 753, 105 S.Ct. 3420, 87 L.Ed.2d 542. Therefore, in order for the Gros Ventre Tribe, and hence Horseman, to have the right to be free from state fish and game regulations while hunting off-reservation, the treaties made between the tribe and the United States must specifically reserve this off-reservation privilege.

We note that Horseman mentioned only the 1855 Treaty when he made his conditional plea. He now argues both the 1851 and 1855 Treaty. Neither treaty provides the reservation he argues.

The Treaty of Fort Laramie was signed in 1851 by the United States and various tribes, including the Gros Ventre. The purposes of the 1851 Treaty were to assure safe passage for settlers across lands of various Indian tribes, to compensate tribes for loss of buffalo, other game animals, timber and forage, to delineate tribal boundaries, to promote intertribal peace and to establish a way of identifying Indians who committed depredations against non-Indians. Montana v. U.S. (1981), 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493; Treaty of Fort Laramie, Act of September 17, 1951, 11 Stat. 749. The tribes agreed to stay in their respective territories.

Article 5 is a tribe-by-tribe list of each tribe's respective territory. At the end of this article is the following paragraph:

It is, however, understood that, in making this recognition and acknowledgement, the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.

The phrase "heretofore described" limits the tribal hunting privilege to that tract of land specified for each tribe. The tribes' respective territories, however, continued to get smaller during subsequent treaties.

In 1855, a treaty with the Blackfeet Nation, of which the Gros Ventre was a tribe, set the boundaries of the Blackfeet territory and established a common hunting ground for 99 years. Treaty with the Blackfeet, Act of October 17, 1855, 11 Stat. 657. This is an express reservation for 99 years--which would have ended in 1954. Despite subsequent treaty documents which diminished tribal lands, the hunting privilege would have been retained on this larger tract of land only until 1954, unless expressly revoked before the 99 years had elapsed.

In 1874, the 43rd Congress set up a reservation for the Gros Ventre, Piegan, Blood, Blackfeet and River Crow. Act of April 15, 1874, 18 Stat. 28. The reservation which was set up during the first session of the 43rd Congress in 1874, was reduced in size by the 50th Congress in 1888. Act of May 1, 1888, 25 Stat. 113. Article II of Chapter 213, published in 1888, states that:

The said Indians hereby cede and relinquish to the United States all their right, title, and interest in and to all the lands embraced within the aforesaid Gros Ventre, Piegan, Blood, Blackfeet and River Crow Reservation, not herein, specifically set apart and reserved as separate reservations for them, and do severally agree to accept and occupy the separate reservations to which they are herein assigned as their permanent homes, and they do hereby severally relinquish to the other tribes or bands respectively occupying the other separate reservations, all their right, title, and interest in and to the same, reserving to themselves only the reservation herein set apart for their separate use and occupation.

What followed was the boundaries for the Fort Peck and Fort Belknap reservations. Nothing in Chapter 213 refers to hunting.

Again, in 1896, an agreement was signed between the United States and the Indians of the Fort Belknap Reservation, 54th Congress, Session I. Act of June 10, 1896, Chapter 398, 29 Stat. 321, 350. In this agreement, the Indians once again ceded land to the United States for which they received payment. Nothing in this chapter reserved hunting rights on lands ceded.

Of all the treaties and subsequent amendments, only the 1855 Treaty reserves hunting rights to common hunting grounds. That reservation was for 99 years only and has now been extinguished.

Horseman cites State v. Stasso (1977), 172 Mont. 242, 563 P.2d 562, as precedent for the fact that he as a tribal member is permitted to hunt in "open and unclaimed" lands off the reservation. Stasso interpreted a treaty with the Salish and Kootenai tribes and is not precedent for a separate treaty with the Gros Ventre.

Stasso involved an interpretation of the Treaty of Hell Gate, signed in 1855. The tribes involved in the Hell Gate Treaty specifically reserved the right to hunt and fish in open and unclaimed areas:

The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting,...