U.S. v. Felter

• Decision Date: 17 January 1985
• Docket Number: No. 82-1745,82-1745
• Citation: 752 F.2d 1505
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Oranna Bumgarner FELTER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1505

752 F.2d 1505

UNITED STATES of America, Plaintiff-Appellant, v. Oranna Bumgarner FELTER, Defendant-Appellee.

No. 82-1745.

United States Court of Appeals, Tenth Circuit.

Jan. 17, 1985.

Martin Green, U.S. Dept. of Justice, Washington, D.C. (Carol E. Dinkins, Asst. Atty. Gen., Raymond N. Zagone and Robert L. Klarquist, U.S. Dept. of Justice, Washington, D.C., Brent D. Ward, U.S. Atty., Bruce Lubeck, Asst. U.S. Atty., Salt Lake City, Utah, were also on the briefs), for plaintiff-appellant.

Kathryn Collard of Collard, Pixton, Iwasaki & Downes, Salt Lake City, Utah, for defendant-appellee.

Martin E. Seneca, Jr., Washington, D.C., argued and submitted briefs for amicus curiae, the Ute Indian Tribe.

Mary Ellen Sloan, Salt Lake City, Utah, submitted a brief for amicus curiae, the Paiute Indian Tribe.

Before HOLLOWAY, Chief Judge, McWILLIAMS, Circuit Judge, and KERR, District Judge ^*.

HOLLOWAY, Chief Judge.

The Government appeals the district court's ruling that defendant, a mixed-blood Ute Indian, did not unlawfully fish within the Uintah and Ouray Indian Reservation in violation of 18 U.S.C. Sec. 1165. The Act of August 27, 1954, ch. 1009, 68 Stat. 868, codified at 25 U.S.C. Secs. 677-677aa ("1954 Act"), divided the Ute Tribe into two groups: mixed-blood members and full-blood members. The district court held that persons identified as mixed-blood members under the 1954 Act for purposes of distributing tribal assets, and for purposes of terminating federal supervision over the property of mixed-blood members, retained the right to fish and hunt within the reservation. We are persuaded by the reasoning of the district court's scholarly opinion, 546 F.Supp. 1002, and we affirm.

I

A. The 1954 Act

During the 1950s, Congress developed a new approach in federal Indian policy. Congress passed legislation to end the special relationship between certain Indian tribes and the federal government. This legislation terminated federal supervision and services in relation to these tribes. See generally F. Cohen, Handbook of Federal Indian Law 152-80 (1982). The 1954 Act ¹ terminated the federal mixed-blood Ute Indians of the Uintah and Ouray Reservation in Utah. See Ute Indian Tribe of the Uintah and Ouray Reservation v. Probst, 428 F.2d 491, 495-96 (10th Cir.) ("The [1954] Act was intended to distribute tribal property and terminate federal supervision over the mixed-bloods."), ² cert denied, 400 U.S. 926, 927, 91 S.Ct. 189, 27 L.Ed.2d 186 (1970).

Under this Act, Congress divided the Ute Tribe into two groups: full-blood members (those with one-half degree of Ute Indian blood and a total Indian blood in excess of one-half) and mixed-blood members (those with insufficient Indian or Ute blood to qualify as full-blood Utes, or those full-blood Utes who elect to be treated as mixed-blood members). 25 U.S.C. Sec. 677a(b), (c). The Act required the preparation and publication of rolls listing the full-blood and mixed-blood members of the Tribe. Id. Sec. 677g. These rolls were published in the Federal Register on April 5, 1956. 21 Fed.Reg. 2208-12. Defendant was listed on the roll of mixed-bloods. Id. 22---. The Act provided that upon publication of the rolls, "the tribe shall thereafter consist exclusively of full-blood members. Mixed-blood members shall have no interest therein except as otherwise provided in this subchapter." 25 U.S.C. Sec. 677d.

The Act required the division between the full-blood and the mixed-blood Utes of tribal assets "susceptible to equitable and practical distribution." Id. Sec. 677i. Mixed-blood members received "unrestricted control" of their proportionate share of the divided property. Federal supervision of mixed-blood members and their property was terminated, "except as to [their] remaining interest in ... tribal assets not susceptible to equitable and practicable distribution." Id. Sec. 677o (a). The Act extinguished the Federal trust relationship with mixed-blood members; ³ these members were no longer "entitled to any of the services performed for Indians because of his status as an Indian." ⁴ Id. Sec. 677v.

B. The Facts

The material facts of the case are reported in the district court's opinion, United States v. Felter, 546 F.Supp. 1002, 1003-04 (D.Utah 1982), and are not in dispute.

On June 6, 1980, defendant was issued a Federal misdemeanor citation for violation of 18 U.S.C. Sec. 1165, ⁵ by fishing without a tribal permit at the Bottle Hollow Reservoir within Indian Country and upon lands in the Uintah and Ouray Indian Reservation held in trust by the United States for the Ute Indian Tribe. I R. 1. At trial before a magistrate, defendant did not deny fishing at that time and place. Instead, she contended that she had a legal right to fish on the reservation which would negate any liability under Sec. 1165. Defendant maintained that as a mixed-blood Ute Indian, her right to fish the waters located on the reservation was not abrogated by the 1954 Act.

The magistrate held that the 1954 Act terminated the right of the mixed-blood Utes to hunt and fish on the reservation. The magistrate relied primarily on Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). I R. 219-22. The Supreme Court there held that the Menominee Indian Termination Act of 1954 ("Menominee Termination Act"), ch. 303, 68 Stat. 250, did not abrogate the hunting and fishing rights of the Menominee Indians in Wisconsin. Although the Menominee Termination Act did not mention hunting and fishing rights, the Court held that the Act had to be read in pari materia with Public Law 280, Act of August 15, 1953, ch. 505, 67 Stat. 588, ⁶ which stated that "[n]othing in this section ... 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." Id. The Court concluded that because Wisconsin was one of the states to which Public Law 280 ceded jurisdiction over offenses committed by Indians within the state, Public Law 280 and the Menominee Termination Act, read together, compelled the finding that Menominee Indians retained the right to fish and hunt. The Court held that this conclusion was consistent with Sec. 10 of the Menominee Termination Act, which stated that "all statutes of the United States which affect Indians because of their status as Indians shall no longer be applicable to members of the tribe"; the Court emphasized that the Menominee tribe's hunting and fishing rights were a creature of an 1854 treaty.

The magistrate held that the Court's decision in Menominee Tribe required the conclusion that the 1954 Act abrogated the right of mixed-blood Utes to fish and hunt for two reasons. First, Public Law 280 did not apply to the State of Utah. ⁷ Second, the Utes' right to hunt and fish was based on an 1864 Act of Congress, not on a treaty. Act of May 5, 1864, Ch. 77, 13 Stat. 63. See 546 F.Supp. at 1010 & n. 22; I R. 7-9.

The district court reversed. The court agreed that Menominee Tribe was relevant, but disagreed with the two reasons cited by the magistrate to distinguish that case. First, the district court stated that Utah's decision not to voluntarily assume jurisdiction over its Indians under Public Law 280 should not affect the analysis in Menominee Tribe on reading Public Law 280 in pari materia with contemporaneous Indian termination acts like the 1954 Act. 546 F.Supp. at 1016-18. Second, the district court noted that the statutory basis of the hunting and fishing rights did not distinguish the case from Menominee Tribe where these rights were based on a treaty. Id. at 1011-14. The district court then stated that, "[l]ike the Supreme Court in Menominee [Tribe ], this Court will readily 'decline to construe the [1954] Act as a backhanded way of abrogating the hunting and fishing rights of these Indians.' " Id. at 1014 (quoting Menominee Tribe, 391 U.S. at 412, 88 S.Ct. at 1711).

The district court "refuse[d] to find a complete abrogation of the mixed-blood Utes' hunting and fishing rights for the simple reason that Congress did not provide for one." 546 F.Supp. at 1018. The district court held that the provision in Sec. 677d that "[m]ixed-blood members shall have no interest therein except as otherwise provided in this subchapter" did not abrogate the hunting and fishing rights because these rights constituted "assets not susceptible to equitable and practicable distribution" under Sec. 677i in which the mixed-blood Utes retained an interest in common with the tribal membership. 546 F.Supp. at 1023. The Government appeals.

II

The narrow question involved in this appeal is whether defendant can be held criminally liable under Sec. 1165 for unlawfully hunting and fishing on the reservation. The Government argues that defendant is subject to liability under Sec. 1165 because the 1954 Act abrogated the right of mixed-blood Ute Indians to hunt and fish on the reservation. The Government contends that Sec. 677d "is the nub around which this case pivots." Reply Brief for the United States 1. According to the Government, by providing that the Tribe shall "consist exclusively of full-blood members" and that "[m]ixed blood members shall have no interest therein except as otherwise provided in this Act," Sec. 677d "unambiguously" states that mixed-blood Ute Indians no longer possess the right to hunt and fish on the reservation. Brief for the Appellant 6. Defendant responds that the mixed-blood members retained the right to hunt and fish because the 1954 Act "otherwise provided" in Sec. 677i that mixed-blood members retained interest in "tribal assets not susceptible to equitable and practicable distribution." Brief of the Appellee 3-6.

At the outset, we note that the 1954 Act does not contain provisions specifically treating the right to hunt and fish. We believe that proper...