Wilson, In re, Cr. 21750

• Court: United States State Supreme Court (California)
• Writing for the Court: BIRD; MOSK; NEWMAN
• Citation: 30 Cal.3d 21,177 Cal.Rptr. 336
• Parties: , 634 P.2d 363 In re Andrew WILSON on Habeas Corpus.
• Decision Date: 08 October 1981
• Docket Number: Cr. 21750

Page 336

177 Cal.Rptr. 336

30 Cal.3d 21, 634 P.2d 363

In re Andrew WILSON on Habeas Corpus.

Cr. 21750.

Supreme Court of California.

Oct. 8, 1981.

Rehearing Denied Nov. 13, 1981.

David J. Rapport, Lester J. Marston, Escondido, Pamela S. Williams, Henry J. Sockbeson, Marilyn B. Miles, Eureka, and Michael S. Pfeffer, for petitioner.

George Deukmejian, Atty. Gen., Gregory W. Baugher, Bruce S. Flushman, Roderick E. Walston and Charles W. Getz IV, Deputy Attys. Gen., for respondent.

BIRD, Chief Justice.

May an exception to the law, which otherwise applies equally to every Californian, be carved out for a special class of individuals so that a person may violate, with impunity, a criminal statute which prohibits hunting out of season on public or private land simply because he belongs to an Indian tribe which once occupied the land?

I.

The relevant facts are uncontroverted. Petitioner, Andrew Wilson, is a member of the Atsugewi branch of the Pit River Indians. About 5:30 p.m. on December 8, 1978, he was apprehended by William Fisher, a game warden, with two deer carcasses in his possession. Fisher seized both the deer and a .22 caliber rifle he found in petitioner's truck. Petitioner was cited for unlawful possession of deer taken during closed season in violation of section 2002 of the Fish and Game Code. ¹ When apprehended, petitioner was on lands within the aboriginal territory of the Pit River Indians. ²

At his court trial, petitioner did not dispute the sufficiency of the evidence to establish that he violated section 2002. Instead, he argued that the Pit River Indians' aboriginal hunting rights had not been extinguished. Therefore, he contended that the state could regulate the Indians' hunting activities within their aboriginal territory only if the regulation met applicable federal standards. (See, e. g., Antoine v. Washington (1975) 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129; compare, Kake Village v. Egan (1962) 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573.) Since the state could not demonstrate that the regulation at issue was a reasonable and necessary conservation measure, that its application to the Indians was necessary in the interest of conservation, and that it did not discriminate against the Indians (Antoine v. Washington, supra, at p. 207, 95 S.Ct. at 951-52), petitioner asserted that the law could not be applied to him.

Rejecting this argument, the trial court found petitioner guilty of the offense charged and sentenced him to serve a one-year term of probation with a seven-day work furlough at the California Department of Transportation. Execution of the sentence was stayed pending appeal.

The Appellate Department of the Shasta County Superior Court affirmed petitioner's conviction and refused to certify an appeal. Petitioner now seeks habeas corpus relief. The trial court's stay remains in effect.

II.

Central to petitioner's claim is his assertion that the Pit River Indian aboriginal right to hunt has not been extinguished. Since it is now established that the tribe's aboriginal "right to occupy" their native territory has been extinguished (United States v. Gemmill (9th Cir. 1976) 535 F.2d 1145, 1148-1149, cert. den. sub nom., Wilson v. United States (1976) 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591), ³ the precise issue which this court must decide is whether extinguishment of the tribe's Indian title to, or right to occupy, their aboriginal territory operated to extinguish the tribe's aboriginal hunting rights.

Petitioner contends these rights are not mere incidents of Indian title but are rights separate therefrom which may be extinguished only pursuant to an express and specific congressional mandate. To assess this contention, it is necessary to review the nature and scope of Indian title and the effect of extinguishment of such title.

Indian title connotes only a permissive right to occupy land, fee title to the land resting with the United States government. (Oneida Indian Nation v. County of Oneida (1974) 414 U.S. 661, 667, 94 S.Ct 772, 777, 39 L.Ed.2d 73; Johnson v. McIntosh (1823) 21 U.S. (8 Wheat.) 240, 253-254, 5 L.Ed. 681.) Federal case law holds that the Indian right of occupancy is a mere possessory interest, not a property right. (Tee-Hit-Ton Indians v. United States (1955) 348 U.S. 272, 279, 288-289, 75 S.Ct. 313, 317, 321-322, 99 L.Ed. 314.) This interest is incapable of alienation absent federal authorization (Oneida Indian Nation, supra, at pp. 667, 669, 94 S.Ct. at pp. 777, 778; Johnson v. McIntosh, supra, at pp. 261-262), and it may be extinguished by the federal government at any time (Oneida Indian Nation, supra, at p. 670, 94 S.Ct. at pp. 778-779; U.S. v. Santa Fe Pacific R. Co. (1941) 314 U.S. 339, 347, 62 S.Ct. 248, 252, 86 L.Ed. 260; Johnson v. McIntosh, supra, at pp. 259-260). ⁴

Until extinguished, such right of occupancy carries with it full use of the land. "The Indians had command of the lands and the waters command of all their beneficial use, whether kept for hunting, 'and grazing roving herds of stock,' or turned to agriculture " and other uses. (Winters v. United States (1908) 207 U.S. 564, 576, 28 S.Ct. 207, 211, 52 L.Ed. 340.)

The scope of Indian title was the central question decided in Shoshone Tribe v. U.S. (Shoshone I ) (1937) 299 U.S. 476, 57 S.Ct. 244, 81 L.Ed. 360, and U.S. v. Shoshone Tribe (Shoshone II ) (1938) 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213. At issue in that litigation was the compensation due the Indians for the taking of a portion of their reservation lands. While the litigation involved a treaty, the treaty was silent regarding the extent of the Indians' rights in the lands. ⁵ The outcome turned, therefore, on the scope of the Indian tenure prior to the treaty, or, more specifically, on the scope of Indian title. (See generally, Cohen, Original Indian Title (1947) 32 Minn.L.Rev. 28, 54-55.) ⁶

In Shoshone I, Justice Cardozo held that the Shoshones had the "right of occupancy with all its beneficial incidents (citation)." (Shoshone I, supra, 299 U.S. at p. 496, 57 S.Ct. at p. 251.) As Shoshone I dealt only with fixing the date of the taking and not with damages, the court did not define those incidents, but held that "(t)he right of occupancy is the primary one to which the incidents attach." (Ibid.)

Shoshone II forced the court to answer, at least in part, the question it had avoided in Shoshone I. Did the tribe's right of occupancy include timber and mineral resources? The court held that in the absence of an express reservation of such beneficial interest in the United States, the tribe had "the right which has always been understood to belong to Indians" (Shoshone II, supra, 304 U.S. at p. 117, 58 S.Ct. at p. 798), the right of occupancy with all its beneficial incidents, including the timber and mineral resources. (Id., at pp. 115-118, 58 S.Ct. at pp. 797-798; accord, U.S. v. Klamath Indians (1938) 304 U.S. 119, 58 S.Ct. 799, 82 L.Ed. 1219.)

Similarly, the right to hunt and to fish has been held to be included within the right of occupancy. (E. g. Winters v. United States, supra, 207 U.S. at p. 576, 28 S.Ct. at p. 211; State v. Coffee (1976) 97 Idaho 905, 556 P.2d 1185, 1189 ("aboriginal title includes the right to hunt and fish"); State v. Stasso (1977) 172 Mont. 242, 563 P.2d 562, 563 (following State v. Coffee, supra: "(h)unting and fishing rights are part and parcel with aboriginal title"); United States v. State of Minn. (D.Minn.1979) 466 F.Supp. 1382, 1385 ("aboriginal hunting, fishing, trapping, or wild ricing rights are mere incidents of Indian title, not rights separate from Indian title"), affd. sub nom., Red Lake Band of Chippewa Indians v. State of Minn. (8th Cir. 1980) 614 F.2d 1161, cert. den. 449 U.S. 905 (101 S.Ct. 279, 66 L.Ed.2d 136); State v. Keezer (Minn.1980) 292 N.W.2d 714, 720-721 (following United States v. State of Minn., supra: " 'hunting rights are mere incidents of Indian title' "), cert. den. 450 U.S. 930 (101 S.Ct. 1389), 67 L.Ed.2d 363.)

Moreover, in a number of treaties with the Indians, Congress explicitly recognized the right to hunt as one of the privileges of occupancy. (E. g., Treaty of January 9, 1789, with the Wyandots, 7 Stat. 29 (reserving land to the Indians "to live and hunt upon, and otherwise to occupy as they see fit"); Treaty of March 28, 1836, with the Ottawas and Chippewas, 7 Stat. 491, 495 (reserving to the Indians the "right to hunt" along with "the other usual privileges of occupancy").)

No decision has been found wherein a court has taken the view that hunting rights exist "(i)n addition to, and as a distinct right separate from aboriginal title" (dis. opn. of Mosk, J., post, at pp. 346-347 of 177 Cal.Rptr., at p. 373-374 of 634 P.2d). It is not surprising that the dissent can cite no authority for its position. The dissent's reliance on Sac & Fox Tribe of Mississippi in Iowa v. Licklider (8th Cir. 1978) 576 F.2d 145 is misplaced. There, the Eighth Circuit held that the Sac and Fox tribe lost its aboriginal right to hunt and fish when it ceded to the United States all the lands west of the Mississippi River to which it had any claim or title or interest. (Id., at pp. 151, 153.) No mention was made of the relation between aboriginal hunting rights and aboriginal title. Other courts, construing virtually identical treaty language, have expressly found that such language operated to extinguish a tribe's aboriginal title which included the tribe's hunting and fishing rights. (United States v. State of Minn., supra, 466 F.Supp. at p. 1385; State v. Keezer, supra, 292 N.W.2d at pp. 720-721.) Nothing in Licklider is to the contrary. Moreover, the Eighth Circuit Court of Appeals, which decided Licklider, has affirmed this reasoning. (Red Lake Band of Chippewa Indians v. State of Minn., supra, 614 F.2d at p. 1162.)

Menominee Tribe v. United States, supra, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697, is also misconstrued by the dissent. In Menominee Tribe...