State v. Coffee , 97 Idaho 905 ( 1976 )

DONALDSON, Justice

(dissenting).

The appellant was charged in a criminal complaint with killing a deer out of season in violation of I.C. § 36-1403 and killing a deer with the aid of an artificial light contrary to I.C. § 36-1301. She stipulated to the charges but moved to dismiss the complaint on the grounds that as an enrolled member of the Idaho Kootenai she had an aboriginal right to hunt in the area free from state regulation. The parties stipulated that the land on which the violations allegedly occurred were within the territorial boundaries of the Idaho Kootenai’s aboriginal hunting grounds. Nevertheless, the majority affirmed the district court’s decision denying appellant’s motion to dismiss.

Being unable to agree with the conclusion reached by the majority, I respectfully dissent. The critical issue presented in this case is whether there was an extinguishment of the Idaho Kootenai’s aboriginal title to the lands in question. I agree with the majority that case law establishes the concept of aboriginal title. As the United States Court of Claims said in Sac & Fox Tribe v. United States, 383 F.2d 991, 997, 179 Ct.Cl. 8 (1967), cert. denied, 389 U.S. 900, 88 S.Ct. 220, 19 L.Ed.2d 217 (1967):

“[T]he right of sovereignty over discovered land was always subject to the right of use and occupancy and enjoyment of the land by Indians living on the land. This right of use and occupancy by Indians came to be known as ‘Indian title.’ It is sometimes called ‘original title’ or ‘aboriginal title.’ ”

I also agree with the majority that aboriginal title includes not only a possessory interest in the land but where established by historical use, the right to hunt and fish. Finally, I agree with the majority that case law establishes that the United States Government in its capacity as the sovereign can extinguish the Indians’ right to their historical land either by treaty or by sovereign act absent a treaty.

I disagree with the majority’s conclusion that extinguishment took place in this case, however. Once established, an extinguishment of Indian rights “cannot be lightly implied.” United States v. Santa Fe Pac. R. Co., 314 U.S. 339, 62 S.Ct. 248, 86 L.Ed. 260 (1941). The Idaho Kootenai were not parties to the Hellgate Treaty. As the majority opinion acknowledges, they could not therefore be affected by the treaty. The majority reaches the identical result, however, by maintaining that ratification of the Hellgate Treaty terminated whatever rights the Idaho Kootenai had in the land. To quote the majority,

“Remembering that the Indian title is only a revocable right of occupancy granted by the United States, it is infer-able in any Indian treaty that the government intends to take the land ceded in the treaty.”

It is true that the United States had the inherent power as sovereign to take the Idaho Kootenai’s land absent a treaty. Once the United States elected to enter into a formal treaty, however, whether ex-tinguishment occurred has to be determined by the terms of the treaty. To hold otherwise would render the treaty process nugatory. Since the Idaho Kootenai were not parties to the Hellgate Treaty, there could be no extinguishment of their rights under the treaty. Case law establishes that Indian title is not a property right, but is a right of occupancy which the sovereign grants and protects against intrusion by third parties. This right of occupancy may be terminated without any legally enforceable obligation to compensate the Indians. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955). But in order to extinguish Indian title by sovereign act, the sovereign must affirmatively do so. Extinguishment cannot be “lightly implied.” In this case the only alleged sovereign act was the ratification of a treaty that did not purport to affect the Idaho Kootenai. Since the treaty did not purport to affect the Idaho Kootenai, its ratification could not affect the Idaho Kootenai.

The Idaho Kootenai retained their aboriginal rights in to to after the ratification of the Hellgate Treaty until the tribe’s possessory interest was extinguished when the Indian Claims Commission awarded the Idaho Kootenai compensation for the loss of their land. Kootenai Tribe v. United States, 5 Ind.Cl.Comm. 456 (1957). It is important to note, however, that there were no statements concerning the Idaho Kootenai’s hunting and fishing rights in the Commission’s decision. Those rights were therefore not extinguished. In United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905), the United States Supreme Court took the view that treaties were “not a grant of rights to the Indians, but a grant of rights from them, — a reservation of those not granted.” It follows that although the effect of the Indian Claims Commission’s decision was to extinguish the Kootenai’s right of possession, their other aboriginal rights including the right to hunt were not affected.

It is well established that the exclusive right to extinguish Indian rights based upon aboriginal occupancy belongs to the United States. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974); United States v. Santa Fe Pac. R. Co., supra. State regulations which have the effect of extinguishing aboriginal Indian rights are invalid under the supremacy clause of the United States Constitution. As the Idaho Supreme Court observed in State v. Arthur, 74 Idaho 251, 261 P.2d 135 (1953), cert. denied, 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087 (1954), if an Indian’s right to hunt and fish were limited to certain times of the year in common with all other citizens “his otherwise ancient right recognized by the treaty and never extinguished would for all practical purposes be extinguished.” That case involved Indian rights that were protected by a formal treaty with the United States. But identical considerations apply to aboriginal rights that are not protected by formal treaty. Only the United States has the authority to extinguish Indian rights. Whether Indian rights are recognized by treaty, statute, or other formal government action is of no consequence in this respect. The origin of all Indian rights is the same — the aboriginal title that can be terminated only by sovereign act.

The criminal complaint charging appellant with killing a deer out of season and killing a deer with the aid of an artificial light should have been dismissed. As an enrolled member of the Idaho Kootenai, appellant had an aboriginal right to hunt within the territorial boundaries of the Idaho Kootenai’s aboriginal hunting grounds. That right could not be affected by I.C. § 36-1403 and I.C. § 36-1301.

This dissent recognizes the legitimate interest of the state in conserving its natural resources, particularly in areas no longer subject to exclusive Indian occupancy. Similar concerns prompted the United States Supreme Court to allow limited state regulation of off-reservation treaty hunting and fishing rights where the regulations were “in the interest of conservation, provided the regulation meets • appropriate standards and does not discriminate against the Indians * * Puyallup Tribe v. Dept. of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968). See also Burnett, “Indian Hunting, Fishing and Trapping Rights: The Record and the Controversy,” 7 Id.L.R. 49 (1970); United States v. Washington, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). In State v. Tinno, 94 Idaho 759, 497 P.2d 1386 (1972), the Idaho Court accepted this standard in an off-reservation treaty case and required the state to “clearly [prove] regulation of the treaty Indians’ fishing in question to be necessary for preservation of the fishery.” This standard is equally applicable to hunting rights.

Although the present case does not involve treaty protected rights I believe the standards adopted by the Court in State v. Tinno, supra, to be an appropriate means of assuring preservation of the species while avoiding extinguishment of the Kootenai Indians’ right to hunt which they have held since aboriginal times. It is also a standard which by now is familiar to the state, a standard which they must already meet in treaty cases.

Statutes are not presumptively valid under this standard. State v. Tinno, supra. In the present case the state has failed to present evidence that hunting by Kootenai Indians presented a threat to white-tail deer or that the statutes in question were “in any way necessary or even useful for the conservation of deer.” Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975). Evidence was produced to show that there are presently fewer than 75 Kootenai Indians in Idaho. Their incomes are generally below average and hunting is often essential to provide an adequate diet for them. In the present case appellant testified she shot the deer to provide food for a number of people in her household. In State v. Tinno, supra, 94 Idaho at 765, 497 P.2d at 1392, the Court recognized that “Indians have subsistence and cultural interests in hunting and fishing that are rooted more deeply than the recreational interests asserted by sportsmen.” Absent a showing that subsistence hunting by so few would be a threat to the preservation of white-tail deer, the statutes in question, insofar as they purport to affect the Idaho Kootenai, are invalid.