State v. Tinno

McFADDEN, Justice.

Defendant-respondent Gerald Cleo Tin-no, a duly enrolled member of the Shoshone-Bannock Tribes of Indians, resides on the Fort Hall Indian Reservation located near Pocatello. He was charged by a complaint with taking a chinook salmon with a spear from the Yankee Fork of the Salmon River in Custer County on July 16, 1968. Both spear fishing and taking salmon at that particular time and location were violations of state fishing regulations.

Trial of the charges was held before a justice of the peace. Respondent admitted the actions charged but as a defense alleged a superior federal right exempting him from the state fishing regulations based on the Treaty with the Eastern Band Shoshone and Bannock, of July 3, 1868, 15 Stat. 673 (hereinafter referred to as the Fort Bridger Treaty). Respondent was adjudged guilty and he appealed to the district court for a trial de novo.

At the non-jury trial in the district court, the parties entered into a stipulation of facts, accepted by the court, in which respondent admitted the acts complained of and in which the parties agreed that respondent is a member of the Indian tribe which is successor to the tribes signatory to the Fort Bridger Treaty. The prosecution offered exhibits A-0 which were admitted, these exhibits consisting of copies of treaties, orders and agreements relating to the history of negotiations between the Shoshone and Bannock Tribes and the United States. The State then rested. Thereupon respondent moved for dismissal contending the exhibits established that he had a paramount right to fish in the manner and at the time and place set forth in the complaint. The motion was denied and respondent proceeded to call nine witnesses, and to produce defendant’s exhibit 1, extracts of certain Fort Hall Reservation historical records.

After hearing the testimony and considering the documentary evidence the district court found that respondent was exempted' by treaty right from the regulations in question and, therefore, was not guilty of the crime charged. This finding appears in the memorandum decision filed by the.district judge which is treated as the judgment of the court. The State appeals from the judgment.

The initial issue determinative of the appeal for these parties concerns the application and effect of I.C. §§ 19-2801¹ and 19-2804.² These provisions and others govern the jurisdiction of this Court in appeals from criminal proceedings in the district courts. State v. Grady, 31 Idaho 272, 170 P. 85 (1918); State v. Anderson, 83 Idaho 263, 361 P.2d 787 (1961).

In this appeal respondent has not raised any issue concerning the State’s right to appeal from a judgment in favor of a defendant in a criminal prosecution. No motion for dismissal has been filed. However, the question of this Court’s jurisdiction to hear the matter was raised by brief and in oral argument by counsel for the United States. The question of jurisdiction, of course, is fundamental, and cannot be ignored once called to our attention.

We are constrained by I.C. § 19-2804 to hold that the appeal must be dismissed. In State v. Albertson, 93 Idaho 640, 470 P.2d 300 (1970), this Court faced a procedural record somewhat similar to that present before us here. In that case the parties had stipulated in the district court that defendant had done the acts complained of (failure to wear a safety helmet while operating a motorcycle) and further, defendant waived any trial. The only question for the district judge was the constitutionality of the statute. The State appealed from an adverse ruling and this Court of its own accord decided to treat the appeal “as being in effect an appeal by the State from a judgment for a criminal defendant on a demurrer to an information. I.C. § 19-2804 [1].”

The instant case also involved an admission by defendant of the acts alleged. However, this cause was essentially tried, at least insofar as the defense is concerned, with documentary and testimonial evidence being considered. All issues of fact were not resolved by the stipulation between the parties. To view the record differently would be to ignore the plain import of the proceedings and to distort the statute beyond recognition. The following rule set forth in State v. Grady, supra, applies:

“ ‘As a general rule the state has no right to a writ of error or to an appeal from a judgment in favor of defendant, whether upon a verdict of acquittal or upon the determination by the court of a question of law, unless it be expressly conferred by statute in the plainest and most unequivocal terms’ [citations].” 31 Idaho at 274, 275, 170 P. at 86.

We are, of course, aware of the importance attached to this appeal and recognize the considerable effort of all parties spent in fully briefing the substantive issues in this appeal. We recognize, too, the uniqueness of the record established in this case. The relentless passage of time dims human memory; it removes knowledgeable witnesses who could best describe the historical facts necessary to an informed decision. It is reasonable to assume the dispute between the State and the Shoshone-Bannock treaty Indians over fishing regulations will be repeated so that eventually the matter must be resolved. These factors lead us to consider the matter substantively for the benefit of not only the State but also the members of the various Indian tribes.

This appeal encompasses several important issues relating to the effect of the Fort Bridger Treaty on Indian fishing right claims.³

The issue which logically must be resolved first is whether the treaty provides for any fishing rights to remain with the Indians. The relevant treaty provision reads:

“Article 4. The Indians herein named agree, when the agency house and other buildings shall be constructed on their reservations named, they will make said reservations their permanent home, and they will make no permanent settlement elsewhere; but they shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon, and so long as peace subsists among the whites and Indians on the borders of the hunting districts.” (Emphasis added.)

Nowhere in this quoted section or in other parts of the treaty does one find reference to the term “fish” or “fishing.” On this point the district court had the benefit of the expert testimony of Dr. Sven S. Liljeblad, a professor of anthropology and linguistics at Idaho State University, relating to the term “to hunt” as the term was generically used in the languages of the signatory Indians. According to his testimony the particular Indian languages did not employ separate verbs to distinguish between hunting and fishing but rather used a general term for hunting and coupled this with the noun corresponding to the object (either animal or vegetable) sought. The Shoshone verb was “tygi” while the corresponding Bannock term was “hoawai”; both were defined as meaning “to obtain wild food.” As Dr. Liljeblad explained, the English terminology when translated to those Indian leaders at the treaty negotiations would have been understood to encompass both “fishing” and “hunting” for game.

The State offered exhibit B, the notes of Brevet Major-General C. C. Augur, an Indian Peace Commissioner who negotiated, the Fort Bridger Treaty. In those notes General Augur does state that the subject of “hunting and fishing” was discussed during the negotiations. Those notes reflect the true concern of the tribal negotiators, recognized by the government agents, that the signatory Indians were facing a major change in their way of life and that their traditional food gathering would have to be insured in the future. The record also indicates that the Indians living on the Fort Hall Reservation, which was established pursuant to the Fort Bridger Treaty, entered into a subsequent agreement with the United States in 1898-31 Stat. 672. That agreement related to the cession of certain Fort Hall Reservation lands to the United States. Article 4 of that agreement reads:

“So long as any of the lands ceded, granted, and relinquished under this treaty remain part of the public domain, Indians belonging to the above-mentioned tribes, and living on the reduced reservation, shall have the right, without any charge therefore, to cut timber for their own use, but not for sale, and to pasture their livestock on said public lands, and to hunt thereon and to fish in the streams thereof.” (Emphasis added.)

While this provision only relates to ceded reservation land, express mention of fishing rights does bear on the recognition of the off-reservation rights reserved in the earlier treaty. That is, it is significant that fishing is recognized as part of the Indian way of life even thirty years subsequent to the first treaty.

On this point the record shows that the Indians represented at the Fort Bridger negotiations were a rather diverse group in terms of geography and social or political allegiance. The two anthropologists who testified at the trial, Dr. Liljeblad, mentioned earlier, and Dr. Earl H. Swanson, Jr., also a professor at Idaho State University, stated the various tribes or bands were in fact rather loosely knit units, and individual families freely changed their associations from one group to another; so called Shoshone Indians could and did join and live with Bannock bands and did intermarry. The two languages, though different, were not substantial hurdles to social mixing. Most people apparently were bilingual. The record also established that various bands of Shoshones and Bannocks roamed much of present day Southern Idaho which includes the Salmon River drainage. Annual treks to salmon spawning beds in the region which includes the Yankee Fork were part of the economic way of life of these Indians since earliest times. Testimony at the trial by several older members of the Fort Hall Reservation population established that salmon fishing continued to be a part of the subsistence plan of the Indians since the Fort Bridger Treaty.

These substantial facts indicate to us that Article 4 of the Fort Bridger Treaty should be read to include a fishing right. We endorse the construction applied by the district judge in his memorandum opinion:

“There is no plausible reason why a traditional and basic means of subsistence of the Indian, the taking of fish, would not have been intended to be reserved by the Indian, or was intended to be extinguished by acquisition by the United States, while at the same time the Indian reserved the right to hunt all other foods. Since the treaty, the Indians have continued to take fish in the manner and the places taught and shown them by their forefathers. The history of the Indians, the tenor of the treaty, and the understanding of the treaty by the parties, dictate that the words ‘to hunt’ be not so delimited as to exclude the right ‘to fish.’ ”

This conclusion finds further support in our earlier decision in State v. McConville, 65 Idaho 46, 139 P.2d 485 (1943). And see State v. Gurnoe, 53 Wis.2d 390, 192 N.W.2d 892 (Wis.1972).

The next principal issue concerns the right of defendant or other treaty Indians to fish at the particular location on the Yankee Fork, a tributary of the Salmon River. The State contends that the answer to this question depends on whether the Yankee Fork lies within a region of land ceded to the United States in the Fort Bridger Treaty.

The concept that the exercise of Indian treaty rights is limited to ceded lands appears in several prior cases. Tulee v. State of Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1942); State v. Arthur, 74 Idaho 251, 261 P.2d 135 (1953), cert. den., 347 U.S. 937, 74 S.Ct. 627, 98 L.Ed. 1087 (1953). New York ex rel. Kennedy v. Becker, 241 U.S. 556, 36 S.Ct. 705, 60 L.Ed. 1166 (1916); State v. Meninock, 115 Wash. 528, 197 P. 641 (Wash.1921); cf. State v. McConville, 65 Idaho 46, 139 P.2d 485 (1943). The theory is that the signatory Indians represented separate political states or sovereignties and as such held title or rights to definable areas of real estate through use, occupancy or possession. The common law concepts cf grants, conveyances, and “reservations” from grants became part of Indian treaty law although those terms were essentially foreign to Indian thinking. See United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). As a result courts must interpret these treaties differently than ordinary conveyances, Choctaw Nation v. Oklahoma, 397 U.S. 620, 90 S.Ct. 1328, 25 L.Ed.2d 615 (1970), keeping in mind the probable understanding of the Indians, Seufert Bros. Co. v. United States, 249 U.S. 194, 39 S.Ct. 203, 63 L.Ed. 555 (1919).

The record in this case relating to the areas of land ceded to the United States by the Fort Bridger Treaty is meager. The treaty itself does not contain a description of the land given up or “ceded” by the Indians; rather, it merely sets out an area for a reservation for their use. The notes taken by the United States representative, General Augur, which are by no stretch of imagination comprehensive, refer to vast areas of Idaho and surrounding states. The record establishes that certain groups of Indians then known as “sheepeaters” and “salmon eaters” were represented at the treaty signing. The anthropologists testifying explained that these particular Indians, who were either Shoshone or Bannock or a mixture of these peoples, roamed the Salmon River country, the Snake River country, and the length of what is now Southern Idaho.

This record points up the difficulty in trying to place a neat and technical geographical construction on these treaties. The signatory Indians had roamed at will and essentially in peace among themselves. They did not in a strict sense occupy the land they roamed; they harvested game, fish, and berries, camas roots, and other natural foods and moved about with the seasonal changes. In agreeing to settle on a permanent basis they still were expecting rights to harvest food on the unsettled lands as a means of subsistence and as an integral part of their way of life.

Article 4 of the Fort Bridger Treaty refers to the “unoccupied lands of the United States” and not to “ceded” lands. The parties stipulated that the Yankee Fork at the location where respondent fished lies within the Challis National Forest and is unoccupied land of the United States. A plain reading of the treaty provision would lead to the conclusion that there is no serious geographical question presented. However, the State urges a qualified reading of Article 4 to limit its application to ceded lands, and further maintains that the place where the offense occurred was outside ceded lands. At trial defendant Tinno answered the second element of the State’s argument by showing that the Fort Bridger Indians made significant use of the Salmon River drainage area for their subsistence needs. The record specifically shows that the early Indians took salmon by spear at the spawning beds; likewise there is evidence that after the treaty signing Fort Hall Reservation Indians customarily hunted and fished in the region encompassing the Yankee Fork locale. It does, therefore, seem reasonable to conclude that in the framework of this case the locale is covered by the treaty.

Our conclusion, we believe, is based upon a reasonable, practical view of the record. The history of the treaty signing and the written records thereof do not lend themselves to a narrow interpretation in. which we are urged to indulge. In order to be fair we must attempt to give effect to the terms of the treaty as those terms were understood by the Indian representatives. Choctaw Nation v. Oklahoma, supra, 397 U.S. at 631, 90 S.Ct. at 1334, 25 L.Ed.2d at 623; People v. Jondreau, 384 Mich. 539, 185 N.W.2d 375 (1971). State v. Gurnoe, supra.

We turn now to the remaining principal issue, that pertaining to the State’s power to regulate Fort Hall Reservation Indians exercising off-reservation fishing rights under the Fort Bridger Treaty. The State sets forth a three-part argument. First, the State has an inherent sovereign right to regulate equally and non-discriminatorily the taking of fish by its citizens. Second, federal Indian treaties create no fishing rights immune from reasonable state regulation. Third, the statutes and regulations applicable were enacted for and do promote the purpose of conservation, and are presumed valid.

On the first and second points, the inherent right of states to regulate the taking of fish or other game by its citizens has long been recognized. Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896). In regard to treaty Indians, there are numerous decisions holding that the state may also regulate Indians in their off-reservation exercise of treaty fishing rights if done so properly and if such regulation is reasonably necessary to preserve the fishery. Tulee v. State of Washington, supra; Puyallup Tribe v. Department of Game of Wash., 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968); State v. McCoy, 63 Wash.2d 421, 387 P.2d 942 (Wash.1963).

In State v. Arthur, supra, this Court strictly construed the State’s power to regulate the exercise of rights protected by treaty. There the Court unanimously held that the state could not regulate a Nez Perce Indian exercising his hunting right on ceded lands under an 1855 treaty. The regulatory power was held to be in abeyance during the existence of the treaty. The Court noted that the treaty Indians usually do not hunt and fish for the reasons that motivate ordinary sportsmen:

“ * * * While both fishing and hunting are primarily sport and recreation for most fishermen and hunters, this is not so with respect to the Indians; they have always fished and hunted to obtain food and furs necessary for their existence and have been controlled as to the time when and the area where and the amount of catch or kill by the exigencies of the occasion * * 74 Idaho at 264, 261 P.2d at 142.

This Court recogized that treaty Indians have subsistence and cultural interests in hunting and fishing that are rooted more deeply than the recreational interests asserted by sportsmen. Sensitivity to this fact, coupled with a straightforward application of the “supremacy clause” of the Constitution, led the Court to conclude that the state could not infringe the defendant’s exercise of treaty rights in that case.

State v. Arthur was a hunting rights case, arising from the taking of a deer from unoccupied lands outside the reservation by a Nez Perce tribesman. The Nez Perce Treaty of 1855 contained an unequivocal hunting right.⁴ In contrast the fishing right was shared “in common with citizens of the Territory.” Similar qualifications appeared in the fishing rights provisions construed by the Supreme Court of the United States in Tulee v. State of Washington, supra, and in Puyallup Tribe v. Department of Game of Wash., supra ⁵ The Fort Bridger Treaty here at issue contains a unified hunting and fishing right which, like the hunting right discussed in State v. Arthur, is unequivocal.

The Supreme Court of the United States has not recently interpreted a treaty provision of this type.⁶ Nevertheless, it is instructive to note that even in cases involving qualified fishing rights the Supreme Court has made clear that such rights are entitled to special protection. In Tulee the Supreme Court held that the state of Washington could not require a treaty Indian to purchase a fishing license, as required of non-Indians. The Court enunciated the general rule that no state regulation of the exercise of treaty fishing rights was permissible unless “necessary” to the preservation of the fishery. The Court essentially adhered to this rule in Puyallup Tribe v. Department of Game of Wash., even though the case had clear commercial overtones and arose from a continuing dispute between competing groups of net fishermen, Indian and non-Indian, exploiting the fishery for profit. An action to enjoin treaty Indian net fishing was remanded with instructions to limit the injunction sought and the Court affirmed that part of the Washington Supreme Court decision⁷ using a “reasonable and necessary” criterion to measure the permissible extent of state regulation.

It would’ appear that if qualified treaty fishing rights receive this kind of special protection, even in the extreme context of commercial net fishing, the exercise of an unqualified treaty right to fish, by spearing a chinook salmon in the Yankee Fork River, certainly cannot be regulated by the state unless it clearly proves regulation of the treaty Indians’ fishing in question to be necessary for preservation of the fishery. To require less of the state would emasculate the treaty rights and violate the “supremacy clause.”

We are of the opinion that the special consideration which is to be accorded the Fort Bridger Treaty fishing right must focus on the historical reason for the treaty fishing right. The gathering of food from open lands and streams constituted both the means of economic subsistence and the foundation of a native culture. Reservation of the right to gather food in this fashion protected the Indians’ right to maintain essential elements of their way of life, as a complement to the life defined by the permanent homes, allotted farm lands, compulsory education, technical assistance and pecuniary rewards offered in the treaty. Settlement of the west and the rise of industrial America have significantly circumscribed the opportunities of contemporary Indians to hunt and fish for subsistence and to maintain tribal traditions. But the mere passage of time has not eroded the rights guaranteed by a solemn treaty that both sides pledged on their honor to uphold. As part of its conservation program, the State must extend full recognition to these rights, and the purposes which underlie them.

This brings us to the third part of the State’s argument. The State contends the fishing regulations violated were enacted to promote conservation purposes and are presumptively valid. It should be noted that the record before us is devoid of evidence relating to the salmon conservation problem. Respondent’s evidence tends to show that the Fort Hall Indians who fish for salmon are not wasting their catch, but that the catch is used for purely domestic purposes. In contrast, the State, although having special knowledge and expertise, offered no justification or explanation of the regulation which it was in the position to do and which it is required to do. Puyallup Tribe v. Department of Game of Wash., supra, State v. James, 72 Wash.2d 746, 435 P.2d 521, 525 (1967); Department of Game v. Puyallup Tribe, Inc., 70 Wash.2d 245, 422 P.2d 754, 761 (Wash.1967), aff’d 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689; Maison v. Confederated Tribes of Umatilla Indian Res., 314 F.2d 169, 172 (9th Cir. 1963); Makah Indian Tribe v. Schoettler, 192 F.2d 224, 226 (9th Cir. 1951); Sohappy v. Smith, 302 F.Supp. 899, 910 (Or.1969); State v. Gurnoe, supra; cf. State v. Gowdy, 1 Or.App. 424, 462 P.2d 461, 465 (1969). Nor can the State merely rest on a presumption of validity where, as here the Indian has shown the regulation impinges upon a right provided for by an applicable federal Indian treaty. The treaty provision clearly will control against a conflicting state statutory enactment. State v. Arthur, supra. Further, this is not the typical situation where the state seeks to assert its general police power over a citizen. For the State to so regulate the treaty fishing right it must meet the federal standard “distinct from the federal constitutional standard concerning the scope of the police power of a State.” Puyallup Tribe v. Department of Game of Wash., supra, 391 U.S. at 401, fn. 14, 88 S.Ct. at 1730, 20 L.Ed.2d at 695, 696.

The conservation statutes (I.C. §§ 36-103, 104) indicate the broad public policy, but the specific regulations promulgated thereunder must be shown to take proper account of the special and distinct nature of Indian treaty rights; and the regulatory provisions sought to be enforced must be specifically shown to be “reasonable and necessary” for preservation of the fishery. Department of Game v. Puyallup Tribe, Inc., supra, 422 P.2d at 764. The State has made no such showing.

The Puyallup Tribe cases, Sohappy v. Smith, 302 F.Supp. 899 (Dist.Or., 1969), and State v. Arthur, supra, all point towards some sort of rational, administrative settlement of these controversies. The State, which has special knowledge and statewide conservation powers, must come forward with justification for regulatory schemes affecting the Indians’ fair share of the fishing harvest. Cooperation between conservation experts and the tribe in determining appropriate fish management programs is necessary if the treaty rights are to be observed.

In accordance with the views expressed herein, the appeal is dismissed.

DONALDSON, J., and MAYNARD, District Judge, concur.

1 . I.C. § 19-2801. “Who may appeal.— Either party in a criminal action in the district court may appeal to the Supreme Court, on questions of law alone, as prescribed in this chapter.”

2 . I.C. § 19-2804. “Appeal by state.—An appeal may he taken by the state:

1. From a judgment for the defendant on a demurrer to the indictment or information.

2. From an order granting a new trial.

3. From an order arresting judgment.

4. From an order made after judgment affecting the substantial rights of the prosecution.

5. From any ruling of the trial judge during the course of the trial on the receipt or rejection of testimony, and from any ruling of the trial judge on the giving or refusal to give instructions to the jury.”

3 . See, Burnett, “Indian Hunting, Fishing, and Trapping Rights — The record and the Controversy,” 7 Idaho L.R. 49 (1970). Comment, “Regulation of Treaty Indian Fishing,” 43 Wash.L.R. 670 (1968).

4 . “ ‘Article III. * * * The exclusive right of taking fish in all the streams where running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places in common with citizens of the Territory; and of erecting temporary buildings for curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon and unclaimed land.’ ” 74 Idaho at 255, 261 P.2d at 136.

5 . The same provision was interpreted in United States v. Winans, supra, and Seufert Bros. Co. v. United States, supra.

6 . The Fort Bridger Treaty was at issue in Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244 (1896). In that case the state power to regulate treaty Indians’ hunting was upheld on the theory that the enabling acts admitting western states to the Union superseded the earlier treaties. Race Horse and the theory it posited have been entirely discredited by the Supreme Court in Winans and Tulee, supra, and require no further discussion.

7 . 70 Wash.2d 245, 422 P.2d 754 (1967).