State v. Watters

• Decision Date: 04 April 2007
• Docket Number: 03M5471.,A127144 (Control).,A127145.,03M5472.
• Citation: 211 Or. App. 628,156 P.3d 145
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Irvin C. WATTERS, JR., Defendant-Appellant. State of Oregon, Plaintiff-Respondent, v. Irvin C. Watters, Sr., Defendant-Appellant.
• Court: Oregon Court of Appeals

156 P.3d 145

211 Or. App. 628

STATE of Oregon, Plaintiff-Respondent, v. Irvin C. WATTERS, JR., Defendant-Appellant.

State of Oregon, Plaintiff-Respondent, v. Irvin C. Watters, Sr., Defendant-Appellant.

03M5471.

03M5472.

A127144 (Control).

A127145.

Court of Appeals of Oregon.

Argued and Submitted October 4, 2006.

Decided April 4, 2007.

Ronald D. Schenck argued the cause and filed the brief for appellants.

Janet A. Klapstein, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge,^* and WOLLHEIM, Judge.

EDMONDS, P.J.

Defendants — father and son — are Native Americans and members of the Nez Perce Tribe. They appeal convictions for game violations arising out of the killing of two elk out of season and on private property.¹ Defendants contend that, pursuant to an 1855 treaty between the Nez Perce and the United States, they are entitled to hunt and take game from open and unclaimed land that was part of their original hunting grounds, which includes the private property where the elk were killed. The trial court disagreed and, following a trial to the court, convicted defendants. On appeal, defendants make three assignments of error. They assert that the trial court erred in: (1) denying their motions to dismiss on the ground that the state has no jurisdiction to try members of the Nez Perce Tribe for game violations on lands ceded to the United States by treaty; (2) denying their demurrers; and (3) determining that the land on which defendants took the elk was not "open and unclaimed" as that phrase is used in the 1855 treaty. For the reasons explained below, we reject each of defendants' assignments of error and affirm.

The essential facts are undisputed. Defendants shot and killed two elk on private land owned by the Boise Cascade Corporation in Wallowa County. At the time, there was no open season for elk under Oregon law, and defendants did not have an Oregon license or tag for elk. Nor did defendants have permission from Boise Cascade to hunt on its property, although the company allows people to use the property for lawful recreational activities, including hunting during open season, without specific permission. A private citizen alerted the state police to the kill, and defendants were subsequently charged with misdemeanor game violations for killing elk during closed season.

Defendants, as noted, are enrolled members of the Nez Perce Tribe. They claim to have taken the elk under the hunting rights reserved in the 1855 treaty between the Nez Perce and the United States. In particular, Article III of the treaty provides that the Nez Perce may continue to hunt upon "open and unclaimed land" that was originally part of the lands ceded to the United States in the treaty. The Boise Cascade land where defendants killed the elk is part of those ceded lands. Boise Cascade has owned that property since the mid-1950s.

The Smith Mountain section of the Boise Cascade property has several different uses, similar to Forest Service land. Its primary purpose is timber resource management, so there is a logging road system in the area to provide access to the timber resources. Boise Cascade maintains an "ownership gate" on the road into the Wise Creek area to control access to that area. The land in that area is also leased out for cattle grazing, and drift fences separate the different pastures. Most of the grazing allotments have a cabin associated with the leased land to facilitate herd management by the lessee. Two such cabins are located in the Smith Mountain area, and a total of about 38 cabins are scattered throughout the whole Boise Cascade property for public recreational use. At major points of access, the company also has signs posted that identify the property as owned by Boise Cascade.

The game officer who cited defendants testified that there are two signs with Boise Cascade logos on them near the access gate to the Smith Mountain area. Defendants claimed that they did not see the signs or any improvements other than the access gate, which was open at the time. The kill site was approximately one mile past the gate and 100 yards off the road. Defendants agreed with the game officer that there is a house about a mile and a half before the gate on the road leading into the Boise Cascade land. Based on that evidence, the trial court made the following findings of facts:

"The area of the Elk kill, was on private land, owned by Boise, and controlled by Boise, for Timber production, and other allowed uses such as grazing, and private recreational use. The use by Boise includes in the general area, roads, cabins, fences, cattle guards, [and] signs. Defendant[s] used Boise's road, and went through Boise's gated area [(]even if closed) to access the kill site. There were no signs, by implication, that the property was U.S. Property. The property is factually NOT open and unclaimed, as it is certainly claimed by Boise."

(Uppercase and underscore in original.)

In an attempt to shed some light on how the Nez Perce would have traditionally perceived the Boise Cascade land in question (i.e., whether they would have viewed it as "claimed" or "unclaimed"), the defense called Alan Marshall, a cultural anthropologist, as an expert witness concerning early Nez Perce history. He testified that the Nez Perce did not have a concept of "title" to land, and that land was held in more of a communal manner. Some areas were treated as "occupied" when, by custom, people would return regularly to a hunting or fishing site. Marshall suggested that early tribal members would view land as "open and unclaimed" if it was not visibly improved, such as an established camping area, a homestead, or a plowed area would be. Although Marshall opined that the existence of a road, gate, or cattle guard would not be the kind of improvement that would put a traditional Nez Perce on notice that an area was "claimed," he conceded that a sign marking ownership might signify "claimed" land under the traditional Nez Perce view of property occupation.

Based on that evidence, and considering cases from other states that have addressed the same issue, the trial court determined that defendants have no reserved treaty right to hunt on private property located outside of the current reservation, but within the boundaries of the 1855 treaty. In other words, the trial court concluded, the Boise Cascade land is not, factually and as a matter of law, "open and unclaimed" within the meaning of the treaty. The trial court further concluded that the state was not required to plead that rights reserved under the treaty of 1855 would not be violated by the criminal prosecution. Instead, defendants were required to assert the treaty as a defense and show their status as persons protected by the treaty, and the state would then be required to present evidence that the treaty does not apply to them (here, that the area of private property was not open and unclaimed).

We begin with defendants' first assignment of error. Pretrial, defendants filed a "Demurrer, Motion Challenging Jurisdiction and Motion to Quash and Dismiss." Defendants asserted: "Jurisdiction of Nez Perce Tribal members' hunting rights are solely within the jurisdiction of the Tribal Courts and the Courts of the United States. Therefore, Defendant moves the court to Quash Count 1 of the complaint and dismiss Count 1 with prejudice." In their memorandum in support of the motion, defendants asserted that "the charges fail to assert jurisdiction of these defendants and assert necessary facts — i.e. — that the defendants as members of the Nez Perce Tribe took these Elk on lands that were not open, unclaimed and/or unoccupied under the terms of the Treaty of 1855." The trial court initially granted the demurrers, declining to reach the motion to dismiss for lack of jurisdiction. On the state's motion for reconsideration, however, the trial court denied the motions.

On appeal, defendants assign error to the trial court's denial of their motion to dismiss for lack of jurisdiction. They reason that, under the doctrine of reserved rights — which dictates that tribes retain all elements of their original land ownership until they affirmatively act to give them up — Oregon did not receive from the federal government any greater rights to land than the federal government received from Indian nations. Thus, defendants assert, "the States have no jurisdiction over the parties to the Treaties to adjudicate and interpret a treaty as to the meaning and/or intent of the language of the Treaty." The state responds that it is well settled that Oregon courts have jurisdiction over all state criminal offenses occurring in Oregon, other than those committed on the Warm Springs Reservation, even when the offense gives rise to a treaty-based defense.

We pause to address a procedural irregularity. As noted, defendants filed a document that purported to include both a demurrer and a motion to dismiss for lack of jurisdiction. But nothing in Oregon's criminal procedure code provides for a separate motion to dismiss on jurisdictional grounds. Instead, that argument must be raised by demurrer or by motion in arrest of judgment. See State v. Caldwell, 187 Or.App. 720, 725 n. 3, 69 P.3d 830 (2003), rev. den., 336 Or. 376, 84 P.3d 1080 (2004) ("[H]istorically, the defenses of lack of subject matter jurisdiction and failure to state a claim have been linked in Oregon law and both have been subject to special provisions regarding how they may be raised at trial. See ORS 135.640 (objection to the court's jurisdiction or that the facts stated in the indictment do not constitute a crime may be made by demurrer or in arrest of judgment[.]")). (Emphasis in original.)

ORS 135.630 sets out the grounds for a demurrer and provides, in part:

"The defendant may...