United States v. Pollmann, Crim. No. 4472.
| Decision Date | 29 August 1973 |
| Docket Number | Crim. No. 4472. |
| Citation | 364 F. Supp. 995 |
| Parties | UNITED STATES of America, Plaintiff, v. Harlan Frank POLLMANN, Defendant. |
| Court | U.S. District Court — District of Montana |
COPYRIGHT MATERIAL OMITTED
Otis L. Packwood, U. S. Atty., Billings, Mont., for plaintiff.
Boone, Karlberg & Haddon, Missoula, Mont., and Turnage & McNeil, Polson, Mont., for defendant.
Confederated Salish and Kootenai Tribes of the Flathead Reservation, represented by Richard A. Baenen, Washington, D. C. (Wilkinson, Cragun & Barker, Washington, D. C., of counsel), for amicus curiae.
The information charges that the defendant, Harlan Frank Pollmann, "did without lawful authority or permission, willfully and knowingly go upon land * * * a portion of Flathead Lake * * * belonging to the Confederated Salish and Kootenai Indian Tribes, for the purpose of fishing thereon, contrary to the provision of 18 U.S.C., Section 1165."1 The defendant filed a motion to dismiss, attacking the sufficiency of the information and the constitutionality of 18 U.S.C. § 1165, and contending that the Tribes have no right to regulate the use of navigable waters and that the prosecution is in violation of the Civil Rights Act of 1968 and constitutes racial discrimination against a non-Indian. This motion was denied in order entered March 16, 1973.
Thereafter defendant filed a supplemental motion to dismiss on the ground that Tribal Ordinance 44A (Revised) of the Confederated Salish and Kootenai Tribal Council2 is invalid as it purports to apply to the south half of Flathead Lake and to this defendant and as a basis for charging defendant with a violation of 18 U.S.C. § 1165. Without waiving any rights under either of his motions, defendant agreed with plaintiff to submit the controversy to the court for its decision on an agreed statement of facts.3
On June 1, 1972 the defendant, a non-Indian, was fishing from a boat on the surface of the waters of the south half of Flathead Lake within the exterior boundaries of the Flathead Indian Reservation. He had in his possession a valid Montana fishing license, but no recreation permit from the Confederated Salish and Kootenai Tribes. He had regularly fished the waters of the south half of Flathead Lake for 36 years without any express authorization or denial of permission by the Tribes or the United States.
The defendant was aware that the Tribes had stated that recreational permits would be required for reservation waters under Tribal Ordinance 44A. He was aware also that 18 U.S.C. § 1165 provides in part that it is unlawful to go upon any land belonging to an Indian tribe for the purpose of fishing, but was not aware that his fishing from a boat on the surface waters of the south half of Flathead Lake was a trespass upon Indian lands. He believed that these waters were not "land" within the meaning of § 1165.
The defendant was aware that Article 3 of the Hellgate Treaty granted to the Confederated Tribes the exclusive right of taking fish from streams running through the Flathead Reservation5 but believed the lake waters were not a stream and were not waters to which the Tribes held an exclusive fishing right.6
Under the Treaty of Hellgate the southern half of Flathead Lake (the area described in the information) is within the exterior boundaries of the Flathead Indian Reservation. In Montana Power Co. v. Rochester, 127 F.2d 189, 191 (1942) the Court of Appeals for the Ninth Circuit held: "Whether the ownership was originally in the Indians or in the United States, it is certain that by the treaty the Hellgate Treaty the United States undertook to hold title to the reserved area, including the bed of the southerly half of the lake Flathead Lake, in trust for the confederated tribes."
Rochester has been followed by this and other courts in subsequent decisions.7 Defendant argues, however, that while the south half of Flathead Lake is within the exterior boundaries of the Flathead Indian Reservation, it is not a part of the reservation and that Rochester was in error in holding that the tribes are the owners of the bed of the lake.
It is true, as defendant contends, that the United States is deemed to have held title to submerged lands below navigable waters in trust for the future states in which the water lay, unless the Congress expressly granted title to another. Shively v. Bowlby, 152 U.S. 1, 48-49, 14 S.Ct. 548, 38 L.Ed. 331 (1894). On the other hand, it is also well settled that Congress has the power to include ownership of the beds of navigable waters as a part of an Indian reservation, United States v. Romaine, 255 F. 253, 259 (9 Cir. 1919) Shively v. Bowlby, supra; Organized Village of Kake v. Egan, 174 F.Supp. 500, 503 (D. Alaska 1959); and that whether or not Congress has done so is a matter of Congressional intent. Choctaw Nation v. Oklahoma, 397 U.S. 620, 633, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970).
The defendant relies upon United States v. Holt State Bank, 270 U.S. 49, 57-58, 46 S.Ct. 197, 70 L.Ed. 465 (1926) which found that the title to the bed of Mud Lake, a navigable waterway within the Red Lake Reservation, had not been granted by treaty or by Act of Congress to the Chippewa Indians, and so title passed to the state of Minnesota upon her entry into the Union. The Court recognized, however, that where the intent is clear (and it may not lightly be inferred) the United States may by treaty or Act of Congress grant Indians title in river beds. In other words, Holt did not involve the express treaty provisions8 which Rochester found determinative with respect to the ownership of the bed of the south half of Flathead Lake. Rochester must be held to be controlling in this case.
The defendant argues that the information fails to charge an offense containing the essential elements of the statutory crime; charges a factual impossibility in designating certain lands in the bottom of Flathead Lake as having been trespassed upon by the defendant; and erroneously charges that the part of Flathead Lake described as a part of the Flathead Indian Reservation is land within the meaning of 18 U.S.C. § 1165.
It is true that an information must expressly set forth the elements of the offense. It is also true that an essential element of this offense is a trespass upon land. State ex rel. Nepstad v. Danielson, 149 Mont. 438, 441, 427 P.2d 689 (1967).9
"Land"
The defendant argues that the surface of Flathead Lake is not "land" within the meaning of 18 U.S.C. § 1165, so as to give reasonable notice of what constitutes criminal conduct.
Section 1165 makes it criminal to trespass "upon any land that belongs to any Indian or Indian tribe * * * or upon any lands * * * reserved for Indian use, for the purpose of * * * fishing * * *." Land Black's Law Dictionary (Revised 4th Ed. 1968).
Whether "land" is taken to mean the submerged soil beneath Flathead Lake, or to include the water surface itself, trespass upon Indian land for the purpose of fishing is not ambiguous language, and clearly includes fishing from a boat on the southern one-half of Flathead Lake.
The defendant argues that the public's dominant right to use navigable waters is not overcome by 18 U.S.C. § 1165, and precludes a right to exclude, regardless of the ownership of the bed of a navigable waterway.10
It is clear that the federal government, under the Commerce Clause of the Constitution, has general dominion, to the exclusion of the states, over navigable waters. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 334, 78 S.Ct. 1209, 2 L.Ed.2d 1345 (1958). It is just as clear that the states have authority to regulate fishing on navigable waters within their borders or coastal waters within their jurisdiction. C. J. Hendry Co. v. Moore, 318 U.S. 133, 135, 63 S.Ct. 499, 87 L.Ed. 663 (1943), rehearing denied, 318 U.S. 801, 63 S.Ct. 848, 87 L.Ed. 1165, and cases cited therein; and that these rights are not in conflict so long as interstate commerce is unaffected. Manchester v. Commonwealth of Massachusetts, 139 U.S. 240, 11 S.Ct 559, 35 L.Ed. 159 (1891).
In Tlingit and Haida Indians of Alaska v. United States, 389 F.2d 778, 785, 182 Ct.Cl. 130 (1968) it was held:
The United States Supreme Court has twice dealt with the fishing rights of the Metlakatla Indians, and has twice "upheld the right of the Metlakatlans to exclude others" from the navigable waters surrounding their island. Metlakatla Indian Community, supra, 369 U.S. at 49, 56, 82 S.Ct. at 556; Alaska Pacific Fisheries, supra.
And the Ninth Circuit has concluded: "The fact that navigable waters are a part of a reservation held in trust for the Indian fisheries does not conflict with the...
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Montana v. United States
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