State v. McClure

• Citation: 268 P.2d 629,127 Mont. 534
• Decision Date: 29 March 1954
• Docket Number: 9347,Nos. 9346,s. 9346
• Parties: STATE v. McCLURE et al.
• Court: Montana Supreme Court

Page 629

268 P.2d 629

127 Mont. 534

STATE v. McCLURE et al.

Nos. 9346, 9347.

Supreme Court of Montana.

Submitted Dec. 29, 1953.

Decided March 29, 1954.

Raymond F. Gray, Robert H. Wilson, Ronan, for appellant.

Arnold H. Olsen, Atty. Gen., Vera Jean Heckathorn, Asst. Atty. Gen., A. L. Libra, County Atty., Eugene H. Mahoney, Sp. Asst. Atty. Gen., Thompson Falls, Eugene H. Mahoney, Sp. Asst. Atty. Gen., Thompson Falls, argued orally, for respondent.

BOTTOMLY, Justice.

This is an appeal from a judgment of conviction and fine from the district court of Sanders County.

The defendants were first arrested by an Indian policeman January 24, 1952, taken before the tribal council and there accused and found guilty by the judge of the Flathead Indian Reservation tribal court of violating their ordinance 9-A, killing antelope on the reservation during the closed season, each defendant being fined, the fine paid and they were released. Defendants were then arrested March 12, 1952, and taken before justice of the peace James L. Adams, Sanders County, on complaint that defendants had in their possession an antelope which was killed during the closed season for hunting antelope under state law. They were each found guilty of having possession of the same antelope that they had been fined for killing by the tribal council and each fined $100. Defendants appealed to the district court of Sanders County. A jury being waived, the issues were tried to the judge without a jury. After trial the judge found each defendant guilty as charged in the complaints and fined each defendant $150. This appeal is from the judgment filed December 11, 1952, and the order assessing fine of January 26, 1953.

Defendants Lindy McClure and Jim Carpentier are Indians and enrolled members of the Flathead Tribe and wards of our Federal Government. Their cases were consolidated for trial in the district court and upon argument here. They were each charged with the same alleged offense, and the law and facts applicable are the same.

The Indians of the Flathead reservation elected to and did come under the Wheeler-Howard Act of June 18, 1934, 48 Stat. 984, 25 U.S.C.A. Sec. 461 et seq. It was stipulated by the state that the Indian tribes of the Flathead reservation had complied with the federal regulations and laws; that they are duly organized and have the authority to pass ordinances to conduct their internal affairs in pursuance of the Wheeler-Howard Act.

The witness James J. Swaney testified, inter alia, that he resided at the Flathead Indian Agency at Dixon; that he was the secretary-treasurer of the tribal council; that he knew the procedure of said council; that the tribal council of the Flathead Indian Reservation received a charter from the Secretary of Interior and thereunder adopted a constitution and bylaws; that under such charter tribal courts were set up on the Flathead Indian Reservation; that they have two judges, all under the authority of federal law.

The council on March 1, 1951, passed ordinance No. 9-A, which was approved the same date. Said ordinance provided as far as pertinent here as follows:

'Ordinance of the Governing Body of The Confederated Salish & Kootenai Tribes of the Flathead Reservation An Indian Chartered Corporation

'Be It Enacted by the Council of the Confederated Salish & Kootenai Tribes of the Flathead Reservation that:

'1. We are hereby closing the entire reservation to hunting and killing of antelope.

'2. Both Tribal and State Game Wardens shall have authority to arrest anyone violating this ordinance and to bring them to the proper courts for punishment.

'3. This closure shall remain in effect until such time as it is mutually agreed by the Tribal Council and the State Game Commission to have an open season.

'4. At the time of any open season the permits shall be equally divided between the Indians and white people.

'Certificate

'The foregoing ordinance was on February 23, 1951, duly adopted by a vote of 9 for and 1 not voting, by the Tribal Council of the Confederated Salish & Kootenai Tribes of the Flathead Reservation, in accordance with Section 1(a), (N), Art. VI of the constitution of the Tribes, ratified by the Tribes on October 4, 1935, and approved by the Secretary of the Interior on October 28, 1935, pursuant to Sec. 16 of the Act of June 18, 1934 (48 Stat. 984).

'(Signed) Walter H. Morigeau

'Chairman, Tribal Council

'Attest:

'(Signed) Phil Hamel

'Secretary, Tribal Council

'Approved March 1, 1951

'(Signed) C. C. Wright

'Superintendent, Flathead Agency'

James J. Swaney, secretary-treasurer of the tribal council, testified: 'Q. Now go back to this agreement that was talked about here. As secretary of the tribe, would you know if there was an agreement between the Fish and Game Commission and the Flathead tribe regarding antelope on the Flathead reservation? A. That was brought up in a council meeting at one time, and there never was an agreement between the State Fish and Game Commission and the Flathead tribe to plant the antelope within the boundaries of the reservation. Q. So what actually happened, they just put them here? A. Apparently so, because I have never seen an agreement of any kind.'

At the close of the testimony in the district court defendants moved the court for an order of dismissal for the reason that the State of Montana did not have jurisdiction, and asserting the rights of defendants under the treaty of July 16, 1855.

The court, January 26, 1953, after finding each of the defendants guilty as charged in each complaint, then entered the following order: 'It was thereupon ordered by the court that the above defendants, Lindy McClure and Jim Carpentier each pay a fine in the amount of $150.00, and if said fine is not paid same to be served in the county jail at the rate of one day for each two dollars of said fine.' Defendants were thereupon remanded to the custody of the sheriff until said fine was paid. The court on the same day, January 26, 1953, made the further order as follows: 'At this time it is ordered that money on deposit as bonds of defendants in the sum of $100.00 each, be applied toward payment of the fine of defendants, said fine being in the amount of $150.00 each, and that defendants have three days from this date within which to pay the balance of said fines, monies so paid to be held by the clerk of this court as bond or undertaking pending appeal to Supreme Court.'

From the judgment and orders fining defendants, this appeal was perfected.

It was stipulated that the game animals, to wit, the antelope, were killed on patented and fee land and within the exterior boundaries of the Flathead Indian Reservation.

Defendants base their defense upon the terms of the treaty of July 16, 1855. This treaty was one of a group of eleven treaties negotiated with the Indian nations and tribes of the northwest between December 26, 1854, and July 16, 1855. Most of the treaties were with coast Indians of the territories of Washington and Oregon, and with those Indians the prime consideration was in protecting and reserving their fishing rights and grounds which provided their major food supply. However, the Flathead and other prairie Indian nations' primary interest was to protect and reserve their hunting rights and grounds which provided their major food and clothing. The form of the treaty, however, was almost identical in each instance.

The question presented here on this appeal is whether the defendants, as members of the Flathead Indian Reservation, with a superintendent thereof in charge, and being wards of our Federal Government, were, as far as state law is concerned, entitled to hunt, kill and take and possess game animals during the closed season on a parcel of land lying wholly within the exterior boundaries of the Flathead Indian Reservation, said parcel of land being patented in fee by the Federal Government.

There is no substantial dispute of facts, or none that is important to our inquiry.

The negotiations and proceedings and council held by Governer Stevens representing the President of the United States, and the Chiefs of the Flathead, Pend d'Oreille and Kootenai tribes, were held at Hell Gate in the Bitterroot Valley, Washington Territory, commencing July 7th and concluded July 16, 1855. This treaty with the Flathead Nation was ratified by the Senate of the United States March 8, 1859, and proclaimed by President James Buchanan April 18, 1859, 12 Stat. 975, 979. By this treaty the Flathead Indian Reservation was established and has continuously so existed under the direction of the superintendent thereof to this date.

Such a treaty solemnly entered into is a contract between two independent nations, in this case, the United States of America and the Flathead Nation, and such a treaty is regarded as a part of the law of the state as much as the state's own laws and Constitution and is effective and binding on state legislatures. Such a treaty is superior to the reserved powers of the state, including the police power. 63 C.J., Treaties, Secs. 27, 28, 29, pp. 844, 845. Compare State of Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641, 11 A.L.R. 984, and cases therein cited; State v. Arthur, 74 Idaho 251, 261 P.2d 135.

The above treaty of July 16, 1885, contained the following, after describing the boundaries of the Flathead reservation, 'All which tract shall be set apart, and, so far as necessary, surveyed and marked out for the exclusive use and benefit of said confederated tribes as an Indian reservation. Nor shall any white man, excepting those in the employment of the Indian department, be permitted to reside upon said reservation without permission of the confederated tribes, and the superintendent and agent.' (Italics supplied.)

Article 3 thereof provides, as far as pertinent here: 'The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as...