USA. v. Gallaher, PLAINTIFF-APPELLEE

• Citation: 275 F.3d 784
• Decision Date: 26 December 2001
• Docket Number: No. 00-30068,PLAINTIFF-APPELLEE,DEFENDANT-APPELLANT,00-30068
• Parties: (9th Cir. 2001) UNITED STATES OF AMERICA,, v. JAMES H. GALLAHER, JR.,
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 784

275 F.3d 784 (9th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JAMES H. GALLAHER, JR., DEFENDANT-APPELLANT.

No. 00-30068

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 10, 2001

Filed Dec. 26, 2001

[Copyrighted Material Omitted]

Kenneth K. Watts, Spokane, Washington, for the defendant-appellant.

Joseph H. Harrington, Assistant United States Attorney, Spokane, Washington, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington Edward F. Shea, District Judge, Presiding D.C. No. CR 99-0111 EFS

Before: Arthur L. Alarcon, Ferdinand F. Fernandez, A. Wallace Tashima, Circuit Judges.

Opinion by Judge Tashima; Partial Concurrence and Partial Dissent by Judge Alarcon

TASHIMA, Circuit Judge:

James H. Gallaher, Jr., a Colville Indian who resides in the Nespelem district of the Colville Indian Reservation, appeals from the judgment of conviction for the crime of possession of ammunition, after being convicted of a crime punishable by imprisonment for a term exceeding one year, as proscribed by 18 U.S.C. §§ 922(g)(1). He contends that the district court lacked subject matter jurisdiction under the May 9, 1891, agreement between the Colville Confederated Tribes and the United States (the "Colville Treaty").

Gallaher also seeks reversal of his sentence as violative of the same treaty. He further contends that the district court erred in concluding that his 1985 conviction of second-degree assault constitutes a predicate offense under 18 U.S.C. §§ 924(e) because he received a Certificate and Order of Discharge on January 26, 1989 ("1989 Certificate") for that prior conviction. Finally, he asserts that the district court abused its discretion in prohibiting him from possessing any bows, crossbows and arrows, as a condition of his supervised release, contending that the restriction does not reasonably relate to his crime of conviction -felon in possession of ammunition.

We affirm the judgment of conviction, but vacate the sentence and remand for resentencing.

I.

On June 21, 1999, Officer Joel Hand of the Colville Tribal Police Services responded to a report of an assault at a campground at Gold Lake in the Colville Indian Reservation. Officer Hand observed that the victim's ear had been"ripped apart from his head." The victim's nose was also broken. David Chewea, the victim of the assault, told Officer Hand that Gallaher had bitten his ear off. He also reported that Gallaher was armed with a .280 caliber rifle.

Officer Hand left Chewea in the care of medics and drove out on Gold Lake Road in search of Gallaher. He was instructed not to confront Gallaher until additional police units arrived to assist him. Officer Hand then stopped on the side of the road.

Approximately five minutes later, Gallaher drove by in a Ford pick-up truck. Officer Hand followed the truck until Gallaher activated his right-turn signal and parked on the side of the road. By this time, other police units had arrived. Officer Hand turned on his emergency lights. Gallaher stepped out of the pick-up truck. Officer Hand ordered him to stand with his back to the officers and hold his arms up with his palms facing the officer. Instead, Gallaher continued to stand facing Officer Hand with his hands in his pockets.

After repeated commands to remove his hands from his pockets, Gallaher did so. He moved his arms in an arc. Officer Hand observed Gallaher throw brass ammunition onto the ground. In searching the area, Officer Hand found 7 mm and .280 ammunition on the ground in the area where Gallaher was taken into custody.

Gallaher was indicted for being a felon in possession of a firearm in violation of 18 U.S.C. §§§§ 922(g)(1) and 924, and for being a felon in possession of ammunition, also in violation of §§§§ 922(g)(1) and 924. After trial, Gallaher was acquitted on the firearm possession count, but found guilty of being a felon in possession of ammunition. Following the return of the jury's verdict, Gallaher moved to dismiss the indictment, arguing that the district court lacked subject matter jurisdiction because the Colville Treaty precluded the United States from taking away a Colville Indian's right to hunt and fish. The district court denied the motion to dismiss.

During the sentencing proceedings, Gallaher maintained that his 1985 conviction for second-degree assault did not qualify as a violent felony because he had received the 1989 Certificate restoring his "civil rights lost by operation of law upon conviction." The district court rejected this argument and enhanced his sentence accordingly. It found that he had been convicted of three, prior, violent felonies, including the 1985 assault conviction, and sentenced him under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §§ 924(e), to 200 months' imprisonment and five years' supervised release, a significantly greater sentence than the sentencing range that would result absent the ACCA enhancement.¹ Gallaher also asserted that the district court lacked the authority to order him not to use bows and arrows because it would interfere with his right to hunt under the Colville Treaty. The district court did not agree.

Gallaher filed a timely appeal from the judgment of conviction and his sentence. We have jurisdiction under 28 U.S.C. §§ 1291.

II.

Gallaher first contends that the district court lacked subject matter jurisdiction because the Colville Treaty expressly bars the United States from taking away or abridging a Colville Indian's right to hunt and fish. In support of this contention, he points to the Colville Treaty's provision that"the right to hunt and fish in common with all other persons on lands not allotted to said Indians shall not be taken away or in anywise abridged." Colville Treaty, May 9, 1891, Art. 6, reprinted in 23 Cong. Rec. 3837-40 (1892); see Antoine v. Washington, 420 U.S. 194, 198-200 (1975) (stating that the Colville Treaty was implicitly ratified by a series of authorizing statutes from 1892 to 1911). Gallaher contends that he is exempt from the application of §§ 922(g)(1), notwithstanding his status as a felon, because Congress did not expressly abrogate the hunting and fishing provisions of Article 6 of the Colville Treaty in making it a federal crime for a felon to possess guns or ammunition. We review de novo a district court's assumption of jurisdiction. United States v. Bennett, 147 F.3d 912, 913 (9th Cir. 1998).

Federal courts have jurisdiction over enumerated offenses committed by Indians pursuant to the Indian Major Crimes Act, 18 U.S.C. §§ 1153. Section 1153 provides in relevant part:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, a felony under Chapter 109A, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury . . . , an assault against an individual who has not attained the age of 16 years, arson, burglary, robbery, and a felony under section 661 of this title within the Indian country, shall be subject to the same law and penalties as all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.

18 U.S.C. §§ 1153(a). The Indian Major Crimes Act, however, is not the exclusive basis for federal jurisdiction over Indians, as we have rejected the "contention that Indians may not be charged for any criminal conduct beyond those crimes enumerated in §§ 1153 . . . . [T]he [Indian] Major Crimes Act [ ] deals only with the application of federal enclave law to Indians and has no bearing on federal laws of nationwide applicability that make actions criminal wherever committed." United States v. Juvenile Male, 118 F.3d 1344, 1350-51 (9th Cir. 1997) (alterations and emphasis in the original) (quoting United States v. Begay, 42 F.3d 486, 498 (9th Cir. 1994)). We have previously determined that 18 U.S.C. §§ 922(g) is a federal statute of general applicability. United States v. Young, 936 F.2d 1050, 1055 (9th Cir. 1991).

Gallaher argues that §§ 922(g)(1) nonetheless cannot apply to him because it would impermissibly abrogate rights guaranteed to him as a Colville Indian by the Colville Treaty. We reject this contention. In order to exempt tribal members from a federal law of otherwise general applicability the treaty itself must specifically so provide. United States v. Sohappy, 770 F.2d 816, 820 (9th Cir. 1985); United States v. Burns, 529 F.2d 114, 117 (9th Cir. 1975). The Colville Treaty contains no such specific, limiting language.

The Seventh Circuit rejected a similar argument in United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288 (7th Cir. 1974). In that matter, an Indian defendant contended that he was exempt from criminal liability under 18 U.S.C. §§ 1202(1)(a), the predecessor statute to §§ 922(g), because a state law regulating hunting and fishing rights had been held unenforceable against Indians. Id. at 1292. The court reasoned:

[F]ederal laws of general applicability . . . have nothing to do with the regulation of any . . . Indian treaty right. Any effect on the defendant's right to hunt is merely incidental, and applicable only to him. The treaty rights allegedly abridged belong to the tribe as a whole and not to any one individual.

Id. The court explained further that "the government has not made the exercise of the treaty right illegal, but rather the defendant's own actions have limited him from participating fully in his tribe's hunting rights." Id. We adopted the Seventh Circuit's rationale in Burns.

In Burns, the appellant was an Indian employed by the Shoshone-Bannock Tribe as a tribal game warden. 529 F.2d at 116. The appellant and another tribal game warden stopped a party of non-Indians who had trespassed onto the Fort Hall Indian...