United States v. Felter

• Decision Date: 20 May 1982
• Docket Number: No. CR 81-00068J.,CR 81-00068J.
• Citation: 546 F. Supp. 1002
• Parties: UNITED STATES of America, Plaintiff, v. Oranna Bumgarner FELTER, Defendant.
• Court: U.S. District Court — District of Utah

546 F. Supp. 1002

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

No. CR 81-00068J.

United States District Court, D. Utah, C. D.

May 20, 1982.

William McConkie, Bruce Lubeck, Asst. U. S. Attys., Salt Lake City, Utah, for plaintiff.

Kathryn Collard, Mary Ellen Sloan, Salt Lake City, Utah, for defendant.

MEMORANDUM OPINION

JENKINS, District Judge.

This is an appeal from the Magistrate's determination that Oranna B. Felter was fishing within the Uintah and Ouray Indian Reservation in violation of 18 U.S.C. § 1165 (1976). That section reads as follows:

§ 1165. Hunting, trapping, or fishing on Indian land

Whoever, without lawful authority or permission willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited.

At trial before the Magistrate, the parties were in agreement as to material facts: On July 6, 1980, a federal misdemeanor citation was issued to Oranna B. Felter by Carlin Cuch for fishing at the Bottle Hollow Reservoir within Indian country¹ and upon lands held by the United States in trust for the Ute Indian Tribe, without a tribal permit. The defendant does not deny fishing at that time and place, but asserts a legal right to do so which would negate any liability for violation of § 1165.

The defendant, formerly an enrolled member of the Ute Indian Tribe, is one of a number of Indians terminated from that status by Congress in the years following 1954. See Part I, infra. She asserted in proceedings before the Magistrate and again asserts here that she retains a right to fish within the Ute reservation notwithstanding the effect of the termination legislation.

Following the hearing and arguments presented below by counsel, the Magistrate determined that whatever fishing rights Oranna B. Felter had possessed as a tribal member were extinguished through the process of termination. The defendant now appeals from that determination. The parties have submitted briefs. On November 13, 1981, counsel appeared before this Court and presented arguments. At that time, this Court took the appeal under advisement.

The Memorandum and Decision of the Magistrate entered in this case reflects care and effort in drafting and is here affirmed in many respects. However, following a careful review of the record herein, the governing legal authorities and the arguments of counsel here and before the Magistrate, this Court finds reversible error in narrow but decisive aspects of the Magistrate's decision.

I. TERMINATION

In the 1950's Congress embarked upon an experimental approach to federal Indian policy. In an effort to reduce federal involvement and expenditure in Indian affairs, Congress terminated federal supervision and services in relation to specific tribes or groups of Indians. See Wilkinson & Biggs, "The Evolution of the Termination Policy," 5 American Indian L.Rev. 139, 145-165 (1977). Among those terminated by Congress were the "mixed blood" Utes, a group comprising approximately one-quarter of the Ute Indian Tribe of the Uintah-Ouray Reservation as it existed at that time.²

It is important to note that "termination" does not mean that someone's identity as an Indian is ended. Cf. United States v. Heath, 509 F.2d 16 (9th Cir. 1974). Rather, what is terminated is (1) eligibility for federal services made available to those recognized as "Indian," and (2) the duties and powers invested in the United States regarding the management of their affairs, or their property.³ Termination legislation ends a relationship between the federal government and specific persons. It is a question of non-recognition or recognition at law of a status, not a denial of one's personal history or heritage.

This distinction is borne out in subsequent action taken by Congress in relation to various "terminated" Indians. In the Indian Education Act, for example, the term "Indian" is defined to include "a member of a tribe, band, or other organized group of Indians, including those tribes, bands or groups terminated since 1940 ...." Act of June 23, 1972, Pub.L. 92-318, Title IV, § 453, 86 Stat. 345, now codified at 20 U.S.C. § 1221h (supp. 1981) (emphasis added). "Terminated" Indians are counted with the unterminated for recordkeeping and providing of services under Title IV Indian education programs. See also American Indian Policy Review Comm'n, Report of Task Force on Terminated and Non-Federally Recognized Indians 1665-1670 (Comm. print 1976). As to specific groups, Congress has restored federal recognition, responsibilities and services through subsequent legislation. See Act of April 3, 1980, Pub.L. 96-227, 94 Stat. 317, now codified at 25 U.S.C. §§ 761 et seq. (supp. 1981) (the "Paiute Indian Tribe of Utah Restoration Act"); Act of Nov. 18, 1977, Pub.L. 95-195, 91 Stat. 1415, now codified at 25 U.S.C. §§ 711 et seq. (the "Siletz Indian Tribe Restoration Act"); Act of May 15, 1978, Pub.L. 95-281, 92 Stat. 246, now codified at 25 U.S.C. §§ 861 et seq. (supp. 1981) (restoration of four terminated Oklahoma tribes); Act of Dec. 22, 1973, Pub.L. 93-197, 87 Stat. 770, now codified at 25 U.S.C. § 903 et seq. (the "Menominee Restoration Act"). A congressional study commission has recommended that other groups terminated be restored to federal status as well. See I American Indian Policy Review Comm'n, Final Report 453-454 (Comm. print 1977).

Termination, therefore, does not equate with the destruction in fact of tribal or Indian identity, nor does it equate with the uncompensated extinguishing of vested rights in property protected by the United States Constitution.⁴

The termination policy has been discredited in the eyes of both Congress and the Indians. See e.g., "Menominee Restoration Act," Hearings on S. 1687 before Subcomm. on Indian Affairs of the Senate Comm. on Interior and Insular Affairs, 93d Cong. 1st Sess. (1973); "Menominee Restoration Act," Hearings on H.R. 7421 before Subcomm. on Indian Affairs of the House Comm. on Interior and Insular Affairs, 93d Cong. 1st Sess. (1973); Wilkinson & Biggs: "The Evolution of Termination Policy," 5 American Indian L.Rev. 139, 162-166 (1977). Even though it is against this background that the language of the Ute Termination Act must be construed, any reading of its terms is governed "by that `eminently sound and vital canon', Northern Cheyenne Tribe v. Hollowbreast, 425 U.S. 649, 655 n.7, 96 S.Ct. 1793, 1797 n.7, 48 L.Ed.2d 274 (1976), that `statutes passed for the benefit of dependent Indian tribes ... are to be liberally construed, doubtful expressions being resolved in favor of the Indians.' Alaska Pacific Fisheries v. United States, 248 U.S. 78, 84, 39 S.Ct. 40, 63 L.Ed. 138 (1918)." Bryan v. Itasca County, Minn., 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976). In determining congressional intent, we are cautioned to follow "the general rule that `doubtful expressions are to be resolved in favor of the weak and defenseless people who are the wards of the nation, dependent upon its protection and good faith'," McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174, 93 S.Ct. 1257, 1263, 36 L.Ed.2d 129 (1973), quoting Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478 (1930); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 586, 97 S.Ct. 1361, 1362, 51 L.Ed.2d 660 (1977); Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1154 (D.Utah 1981) and cases cited therein. In this context, courts are "extremely reluctant" to find abrogation of vested Indian rights by Congress absent explicit statutory language. Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 690, 99 S.Ct. 3055, 3076, 61 L.Ed.2d 823 (1979).

II. THE UTE TERMINATION ACT

Pursuant to the Act of August 27, 1954, ch. 1009, 68 Stat. 868, now codified at 25 U.S.C. §§ 677-677aa (1976), the Ute Tribe was divided into two groups: those who possessed by ancestry one-half degree Ute Indian heritage and a total Indian blood quantum greater than one-half, and those who did not. 25 U.S.C. § 677c (1976). Rolls were to be prepared, listing the membership of each group. Following publication of the final rolls in the Federal Register, the Ute Indian Tribe was to consist only of those enrolled as "full-blood" members. 25 U.S.C. §§ 677d, 677g (1976). Also following such publication, both groups were to commence "a division of the assets of the tribe that are then susceptible to equitable and practicable distribution," 25 U.S.C. § 677i (1976), which would then be distributed in some manner to individuals, 25 U.S.C. § 677 (1976); "all unadjudicated or unliquidated claims against the United States, all gas, oil, and mineral rights of every kind, and all other assets not susceptible to equitable and practicable distribution shall be managed jointly by the Tribal Business Committee and the authorized representatives of the mixed-blood group, ..." Net proceeds from the undivided assets were to be apportioned according to the ratio of persons on each roll. 25 U.S.C. § 677i.

Following distribution of the assets, property held by mixed-blood individuals or mixed-blood corporate entities^4A was to be released from trust or restricted status and patented to the individual or corporate owner. 25 U.S.C. § 677o (1976). Section 23 of the Act, 25 U.S.C. § 677v, provides as follows:

Upon removal of Federal restrictions on the property of each individual mixed-blood member of the tribe, the Secretary shall publish in the Federal Register a

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