State v. Cutler

708 P.2d 853, 109 Idaho 448, 1985 Ida. LEXIS 524

• Court: Idaho Supreme Court
• Decided: March 19, 1985
• Docket: 14699
• Status: Published

Opinions

BISTLINE and HUNTLEY, JJ.,

dissenting.

Today we who do not join the Court’s opinion unite with others as witnesses to a travesty in Indian jurisprudence and the continued tragic and abysmal disregard for Indian rights by a court of law. Embedded canons of Indian law interpretation and application have been turned on their head in a majority opinion which grossly misapplies and ignores controlling United States Supreme Court precedent; by a process of legalistic gymnastics the meaning of words and phrases have been twisted and tortured to extinguish century-old rights enjoyed by Indians of this State.

Not only is the decision of the Court flagrantly wrong, but its method of analysis in reaching its conclusion is patently in error. Rather than simply point to the errors in the majority opinion, we will write an opinion predicated on precedent, indicating how this case should have been decided.

The central issue here focuses around interpretation of the 1868 Fort Bridger Treaty entered into by the United States and the Eastern Shoshone and Bannock Indians. Article 4 of the Treaty is the language at issue in this case. It reads:

[The Indians] 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 the Indians on the borders of the hunting districts.

For our consideration is whether the words “unoccupied lands of the United States” include the forested lands of Idaho’s Sand Creek Ranch, a segment of the state-operated Sand Creek Wildlife Management area. An application of the rules of interpretation for Indian treaties set down by the Supreme Court of the United States to the circumstances surrounding the signing of the Fort Bridger Treaty — its purpose, intent and impact — compels the holding that the land in question is included within the Treaty’s language.

HISTORY

The appellants are six enrolled members of the Shoshone-Bannock Tribes, each of whom lives on the Fort Hall Indian Reservation in southeastern Idaho. They were convicted of the misdemeanor offense of illegal possession of wildlife for killing one deer and four elk on state-owned lands of the Sand Creek Ranch after the close of the State’s regulated hunting season. The Indians assert that the convictions must be overturned under Article 4 of the 1868 Fort Bridger Treaty, for it allows them to hunt on “unoccupied lands of the United States” without regard to state-fixed hunting seasons. The State contends that the convictions were proper because the title to the land upon which the hunting took place is in the State of Idaho, not the United States, and because, it argues, the land was in fact occupied. Those are the questions to be answered, but answered only in light of the Treaty.

Sand Creek Ranch is one segment of the 27,000 acre Sand Creek Wildlife Management area located in Fremont County. The ranch is comprised of 1,000 acres owned by the United States interspersed among 4,760 acres owned by the State of Idaho. The entire wildlife area is operated as a wildlife restoration project by the Idaho Department of Fish and Game under the authority of two federal statutes: the Federal Aid and Wildlife Restoration Act, 16 U.S.C. §§ 669 et seq., and the Fish and Wildlife Coordination Act of 1934,16 U.S.C. §§ 661-66c. As with most of the state-owned land within the management area, Sand Creek Ranch was purchased with approximately 75 percent federal funds. Although managed by Idaho’s Department of Fish and Game, such lands remain under the ultimate supervision and control of the federal government.

The entire management area is within the aboriginal domain which was used and occupied by the Shoshone-Bannock Tribes prior to the 1868 Treaty. In Article 2 of the 1868 Treaty (15 Stat. 674), the tribes ceded to the United States their aboriginal rights to occupy all lands now within that area. Since the Treaty, the United States has continuously owned all Federal lands in the area. All state-owned lands were originally owned by the United States until title was transferred, after 1890 when Idaho entered the Union, to either the state or to private predecessors who subsequently sold their land to the state.¹

Trial was held in magistrate court on a record of stipulated facts. The only issue for resolution was the question of whether the Indians had a paramount right to hunt on the land in question under the 1868 treaty. The magistrate’s ruling that the land was not “unoccupied” under Article 4 was based on two criteria: (1) “the inherent right of an agency of state government to possess, to use and to ‘occupy’ real property in a physical sense paralleling a private citizen’s ownership in and to real property”; and (2) the presence of some outward indicia of occupancy: fencing, signs, improvements to the land, etc. The magistrate deemed it unnecessary to decide whether the state-owned land constituted land “of the United States” under the language of the treaty.

Sitting as an appellate court, the district court affirmed the convictions, but held that necessary to and implicit in the magistrate’s decision was a determination that the land was not owned by the United States. The district court thereupon supplied that determination. This appeal ensued.

I.

In interpreting the Fort Bridger Treaty, it is important to first review pertinent fundamental tenets of Indian law. First, an Indian treaty involves the granting of rights from the Indians to the grantee. It is not a grant of rights to the Indians. United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905); accord Washington v. Fishing Vessels Ass’n, 443 U.S. 658, 678, 680-81, 99 S.Ct. 3055, 3070, 3071-72, 61 L.Ed.2d 823 (1979). Thus, all rights not granted by the Indians are reserved to them. These rights are reserved to every individual Indian as though named in the treaty. Winans, 198 U.S. at 381, 25 S.Ct. at 664.

Second, a treaty “ ‘must be construed, not according to the technical meaning of its word to learned lawyers, but in the sense in which they would naturally be understood by the Indians.’ ” Washington, 443 U.S. at 676, 99 S.Ct. at 3069, (quoting Jones v. Meehan, 175 U.S. 1, 11, 20 S.Ct. 1, 5, 44 L.Ed. 49 (1899)). See also State v. Tinno, 94 Idaho 759, 763-64, 497 P.2d 1386 (1972). The reason for this is that the United States is presumed to be the party possessing superior negotiating skills and superior knowledge of the language in which the treaty was recorded. F. Cohen, Handbook of Federal Indian Law 446 (1982 ed.). Thus, the United States has a special obligation not to take advantage of the other side. Washington, 443 U.S. at 676, 99 S.Ct. at 3069.

Third, Indian hunting, fishing and gathering rights are often preserved in treaties. See, e.g., Washington; Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968); Puyallup Tribe v. Department of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968); Winans; Tinno. The scope of these rights recognized by the courts is “very broad, virtually as broad as the exercise of those rights by the Indians prior to their settlement on reservations. Cohen, supra, at 446. Courts construe these rights broadly, for the purpose of preserving the rights was to enable the Indians to utilize the game, fish, and plant resources as a means of assuring self-sufficiency. Id.

Finally, reference to facts at the time a treaty was signed is the method used for determining the intent of the parties, particularly the Indians; it is not a means for limiting the Indians’ rights. Id. at 447. This method is proper and essential in correctly adjudicating the Indians’ rights. See Washington, 443 U.S. at 664-69, 99 S.Ct. at 3063-66; Tinno, 94 Idaho at 762-64, 497 P.2d 1386.

II.

The first issue to resolve is whether the Sand Creek Ranch is “unoccupied” within the meaning of the Treaty. In Tinno, 94 Idaho at 764, 497 P.2d 1386, this Court construed Article 4 to mean that Indians could hunt on land not taken by settlers: “In agreeing to settle on a permanent basis [on reservations] they [the Indians] 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.” (Emphasis added.) Records of the 1868 negotiations and salient historical evidence strongly support the Tinno Court’s interpretation of the statute.

On July 3, 1868, General L.C. Auger, a member of the Indian Peace Commission, met with the Eastern Band of Shoshone and the Mixed Bands of Indians.² He explained the purpose and intent of the United States in negotiating a treaty with the Indians:

About a year ago, the great council and your great Father in Washington sent out a Commission to have a talk with the Indian tribes in the west, to make peace with such as were hostile, and to arrange with all of them that hereafter, there should be no more war between the white men and the Indians____ The Shoshone and Bannocks are at peace with the whites, and have been for years. All we have to do therefore is to arrange matters, that there may never hereafter be a cause of war between them. There are a great many white men in your country now, and as soon as the Railroad is completed there will be many more. They will wish to remain and make homes here, and your great Father desires that they should do so____

He [U.S. President] wishes, however, to set apart a portion of it [aboriginal domain] for your permanent homes, and into which no white men will be permitted to come or settle. Upon this reservation he wishes you to go with all your people as soon as possible and to make it your permanent home, but with permission to hunt wherever you can find game.

Auger Minutes (emphasis added).

In explaining the identical provision of the 1868 Fort Laramie Treaty with the Crow Indians, 15 Stat. 649, 650, Senator Harlan of Iowa, stated that there was:

a provision permitting these Indians to hunt, so long as they can do so without interfering with the settlements. So long as outside lands, outside of the reservation, may not be occupied by settlements, and may be occupied by game, they may hunt to the game.

Cong. Globe, 40th Cong., 3d Sess., p. 1348, col. 3 (Feb. 18, 1869) (emphasis added).

In reports sent to Washington in 1877 by Indian agent James Patten, it was made clear that such was also the understanding of the Indians:

The Shoshone also understand that with the treaty of 1868 permission was given to them to hunt as long as game may be found thereon and that the same does not interfere with white settlers.

G. Hebard, Washakie, An Account of Indian Resistance of the Covered Wagon and Union Pacific Railroad Invasions of Their Territory, 167 (1930) (emphasis added).

It is clear from the foregoing evidence that both the United States and, more importantly, the Tribes to the Treaty understood Article 4 to guarantee the Indians the right to hunt off-reservation so long as they did not interfere with the encroaching white settlements. That is, both parties to the 1868 Fort Bridger Treaty understood “unoccupied” to mean those areas where hunting would not interfere with the white settlers.

It is readily apparent that Article 4 of the Fort Bridger Treaty was an attempt to accommodate the burgeoning white population, with its geographically fixed agrarian lifestyle, to the traditionally nomadic, wide-ranging hunting and gathering lifestyle of the Indians. Traditional Indian ways sadly were incompatible with the white’s permanent settlements; however, they were not incompatible with land remaining open and unsettled by farms and towns.

An interesting analogy is the fact that this Court, as well as other courts, has held that national forest lands are “unoccupied lands of the United States” either in interpreting the 1868 Fort Bridger Treaty or other treaties with similar or identical phraseology. See, e.g., Tinno, 94 Idaho at 764-66, 497 P.2d at 1390-92; State v. Arthur, 74 Idaho 251, 261, 265, 261 P.2d 135, 141, 143 (1953); Swim v. Bergland, 696 F.2d 712, 716 (9th Cir.1983); Confederated Tribes of the Umatilla Indian Reservation v. Maison, 262 F.Supp. 871, 872 (D.Or.1966), aff’d sub nom., Holcomb v. Confederated Tribes, 382 F.2d 1013 (9th Cir.1967); State v. Stasso, 172 Mont. 242, 563 P.2d 562, 563 (1977); State v. Chambers, 81 Wash.2d 929, 506 P.2d 311, 312 (1973). We can think of no qualitative factual distinction which makes a state wildlife area materially different from a national forest.

The Fish and Game Department cites several factors for the proposition that lands of the Sand Creek Ranch are distinguishable from the national forest land: let-down snow fences border much of the area, signs identifying the land are posted along the perimeter, a campground (closed for the winter) has been provided, a residence is occupied by Fish and Game Department personnel approximately 25-40 days per year, and earthen dams have been constructed on the Ranch.³ These factors are not persuasive.

Fencing, government signs, forest service stations, campgrounds, flood control and water conservation projects also exist on national forest land. Moreover, that the State sponsors and promotes hunting by Indians and non-Indians alike in both the state and federal wilderness areas (and even on this ranch in season) compels the conclusion that such lands are compatible with hunting activities generally. The type of settlement envisioned by the treaty signatories is simply not present. There are no towns, homes, farms, schools or businesses present; the land has not been “settled” in the sense experienced or understood by the Indians in 1868 and provided for by the Treaty. Thus, it is “unoccupied” for purposes of the Fort Bridger Treaty and is appropriate for the exercise of traditional Indian hunting activities.

The reasons the majority relies upon in holding that the land in question is “occupied” are tenuous and illogical; First, it is unreasonable to circumstantially infer that the Indians in 1868 understood Anglo-Saxon concepts of land occupancy solely on the basis of some visits by tribal leaders to white settlements. Such a conclusion, without more corroborative evidence, is grossly ethnocentric, for it fails to take into account the fact that the Indians’ concepts of property, possession, and occupancy were different from the white man’s. In Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 357, 65 S.Ct. 690, 701, 89 L.Ed. 985 (1945), Justice Jackson, in a concurrence, makes just this point:

We doubt if any interpreter could intelligently translate the contents of a writing that deals with the property concept, for the Indians did not have words to fit ideas that have never occurred to them. Ownership meant no more to them than to roam the land as a great common, and to possess and enjoy it in the same way that they possessed and enjoyed sunlight and the west wind and the feel of spring in the air. Acquisitiveness, which develops a law of real property, is an accomplishment only of the “civilized.”

Thus, to suggest that these Indians, in 1868 nomadic and possessing a culture independent of and foreign to the white settler’s, would comprehend Anglo-Saxon theories of property on the basis of a few visits to white settlements requires leaps of faith which we are unable to make.

Second, the fact that the Indians in 1868 conceded that their hunting rights would diminish in time is totally irrelevant to a determination of whether the land in question is unoccupied. The fact is that there is game to be hunted and there is still off-reservation land wherein the Indians can hunt “without interfering with the [white’s] settlements.” Senator Harlan of Iowa, Cong. Globe 50th Cong. 3d Sess., p. 1348, Col. 3 (Feb. 18, 1869). Furthermore, the reduction in the number of game available for hunting, if such in fact does exist, or the reduction in area considered to be “unoccupied,” does not denigrate or diminish the quality or nature of the Indians’ hunting rights. So long as there is game to hunt and “unoccupied lands of the United States” upon which to hunt, the Indians’ right to hunt is inviolate and must be protected.

Third, the fact that Sand Creek Ranch was acquired from a private party by the State is also totally irrelevant. The fact is that for over forty years the land has been operated by the State under federal government supervision for purposes consistent with the Indians’ continued exercise of their treaty rights. Even if the land were still privately owned, that does not in and of itself mean that the land has become “occupied.” Granting or denying the Indians’ right to hunt based upon a determination of who owns the land begs of the type of legal sophistry the United States Supreme Court has long held should be eschewed in interpreting Indian treaties. See, part I, supra. The method of analysis for deciding whether the land is “unoccupied” should not change simply because of who owns title to the land in question.

Property once subject to a treaty does not magically become immune from a treaty simply because it has been acquired by private individuals. In Winans, supra, the Supreme Court held that under an 1859 treaty the Yakima Indians had an easement to go across and use privately-owned land in the exercise of their treaty fishing rights. The Court also held that the Indians’ right to fish was “intended to be com tinuing against the United States and its grantees." Id., 198 U.S. at 381-82, 25 S.Ct. at 664-65 (emphasis added). We do not need to decide if this same reasoning is applicable to the Fort Bridger Treaty, for it is not before the Court. It is also unnecessary in determining whether Sand Creek is “unoccupied” for purposes of the Treaty. Winans is mentioned only to point out that determining the ownership of the land is irrelevant in ascertaining whether it is unoccupied as that word was understood by the Indians in 1868.

Fourth, the factors suggested by the State as compelling a holding that the land is “occupied” do not withstand scrutiny. The simple fact is that the Sand Creek Ranch is compatible to hunting activity. No qualitative difference exists between how the Sand Creek Ranch is managed and how national forest lands are managed, which latter lands have consistently been held to be “unoccupied.” Neither the State nor the majority opinion have put forth one acceptable • reason for differentiating between the land here involved and national forest land. Thus, the reasoning of Tinno and other cases holding national forest land to be unoccupied ought to be followed.⁴

In summary, we find ourselves logically compelled by the historical evidence surrounding the negotiation of the 1868 Fort Bridger Treaty, by case law, both federal and state, including Idaho, and by reason, to hold that the land in question is “unoccupied” for purposes of the Treaty.

Assuming arguendo that the meaning of Article 4 of the Treaty is unclear, we are still compelled to reach the same result. Chief Justice Marshall long ago stated in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, , 8 L.Ed. 483 (1832): “The language used in treaties with the Indians should never be construed to their prejudice.” This rule has been reiterated repeatedly since then. See, e.g., Antoine v. Washington, 420 U.S. 194, 199, 95 S.Ct. 944, 948, 43 L.Ed.2d 129 (1979); Menominee Tribe v. United States, 391 U.S. 404, 406 n. 2, 88 S.Ct. 1705, 1707 n. 2, 20 L.Ed.2d 697 (1968); Choate v. Trapp, 224 U.S. 665, 669, 679, 32 S.Ct. 565, 566, 571, 56 L.Ed. 941 (1912); Choctaw Nation v. United States, 119 U.S. 1, 28, 7 S.Ct. 75, 90, 30 L.Ed.2d 306 (1886); Kansas Indians, 5 Wall. 737, 760, 18 L.Ed. 667 (1867). Thus, even under an assumption that the Treaty language is ambiguous, we would also hold that Sand Creek Ranch is “unoccupied.”

III.

The second issue to resolve is whether the lands of the Sand Creek Ranch are “lands of the United States.” Two possible theories exist in interpreting this provision: (1) The Treaty covers only property in which title is vested in the federal government; or (2) The Treaty covers all territory within the geographical boundaries of the United States. The district court opted for the first view, but we think it clear that the second view is the one more consistent with the probable understanding of the Indian parties to the Treaty.

It is entirely unlikely that the Indians were even aware of, much less grasped, the concept of the distinction between federal and state ownership of land in 1868. Most of the land within their aboriginal territory would not achieve the status of a state until more than 20 years later. Oregon was then a state, but Montana and Washington would not become states until 1889 and Idaho and Wyoming would not become states until 1890. Utah would not enter the Union until 1896, fully 28 years later. Thus, the aboriginal domain of the Shoshones and Bannocks in 1868 was almost exclusively within the jurisdiction of federal territories. Further, all of their dealings were with federal representatives who consistently explained that they were negotiating and signing on the authority of the “Great Father” (President) and “Great Council” (Congress) in Washington. See, e.g., Auger Minutes.

The Indians did understand that their permissible hunting area would- diminish gradually as whites settled the land; however, the absence of historical proof that their hunting domain would be decreased by any other method compels the conclusion that the Indians understood that such would be the only means by which their traditional hunting grounds would be limited. This is particularly true in ruling out the legalistic argument that the lands would be diminished due to title becoming vested in another distinct, politically defined, governmental entity (a change which would create no discernible differences in the nature of the land.) Even if that concept had been explained and somehow understood by the Bannocks and Shoshones, it would require a further leap of faith to believe that they would have understood the fine points involved in federal control of State-owned land, as it exists over the Sand Creek Ranch, and bears on the State’s ownership thereof.⁵

We are unable to discover one iota of evidence which would suggest that a mere change in the title of undeveloped forest land, the suitability of which for traditional Indian hunting activities remains unchanged under one non-Indian governmental entity as opposed to another non-Indian governmental entity, was the type of limitation on Article 4 hunting rights contemplated by the parties to the Treaty, particularly by the Indians. In terms of the Indians’ understanding of any such change in title, the only relevant point is that the land remained within the territorial borders of the United States. The probable understanding of the Indians in 1868 of the intricacies of the separate, co-existent sovereigns of state and federal government, within one geographical area was non-existent and certainly unprovided for in the Treaty. Thus, guided by the probable understanding of the Indians of the Fort Bridger Treaty, and by the rule that doubtful language is to be construed in favor of the Indians, we would hold that the land of the Sand Creek Ranch constitutes “unoccupied lands of the United States” for the purposes of the Treaty.

IV.

Today’s majority decision stands as a monumental setback for Indians not only because the result reached is blatantly wrong, but also because the method of analysis used is wrong. It was Supreme Court Justice Benjamin Cardozo who said: “The loyalty of the Shoshone tribe to the people of the United States has been conspicuous and unfaltering. A fidelity at least as constant and inflexible was owing in return.” Shoshone Tribe of Indians v. United States, 299 U.S. 476, 486, 57 S.Ct. 244, 246, 81 L.Ed. 360 (1937). Rather than being loyal to this group of Native Americans and following established precedent, this Court has chosen not to construe the Treaty according to the probable understanding of the Indians, has chosen not to give broad scope to the Indians’ hunting rights, and has chosen not to avoid interpreting the Treaty to the Indians’ prejudice. The Court could only do this by ignoring United States Supreme Court and Idaho precedent, as well as Idaho’s Organic Act, in reaching its decision.

In conclusion, our sentiments are those of Supreme Court Justice Hugo Black when he said: “I regret that this Court is to be the governmental agency that breaks faith with this dependent people. Great Nations, like great men, should keep their word.” Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 142, 80 S.Ct. 543, 567, 4 L.Ed.2d 584 (1960). We would only add that great states, constitutionally obligated to uphold federal law, including treaties, as the supreme law of the land, should also fulfill their duty to do so. This Court has not done so today.

1 . Federal law has mandated the recognition and respect for Indian treaties in Idaho since its organization as a territory. That obligation has never changed. §§ 1 and 17 of the Organic Act of The Territory of Idaho, 12 Stat.L. 808, ch. 117, provided in part:

§ 1. Provided, further, that nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said territory, so long as such right shall remain inextinguished by treaty between the United States and such Indians, or include any territory, which, by treaty with the Indian tribes, is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any state or territory; but all such territory shall be excepted out of the boundaries and constitute no part of the territory of Idaho, until said tribe shall signify their assent to the President of the United States to be included within the said territory, or to affect the authority of the govérnment of the United States, to make any regulations respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent for the government to make if this act had never been passed.

§ 17. Treaties with Indians — Duty to keep and observe. — All treaties, laws, and other engagements made by the government of the United States with the Indian tribes inhabiting the territory embraced within the provisions of this act, shall be faithfully and rigidly observed, anything contained in this act to the contrary notwithstanding; and that the existing agencies and superintendencies of said Indians be continued with the same powers and duties which are now prescribed by law, except that the President of the United States may, at his discretion, change the location of the offices of said agencies or superintendences. (Emphasis added.)

2 . A review of the context in which the treaty was executed is illuminating. Justice Butler in United States v. Shoshone Tribe of Indians, 304 U.S. 111, 114, 58 S.Ct. 794, 82 L.Ed. 1213 (1938), discussed the status of the Indians who were party to the 1868 Fort Bridger Treaty: "When the treaty of 1868 was made, the tribe consisted of full-blood blanket Indians, unable to read, write, or speak English. This assessment is borne out by the fact that the treaty negotiations were conducted through a government interpreter and by the fact that all of the Indian signatories subscribed the treaty with an ‘X.’" See 15 Stat. at 677. The language barrier was further compounded because some English terminology, when translated to the Indian leaders at the treaty negotiations, would have been understood to encompass more than one meaning. See Tinno, 94 Idaho at 767, 497 P.2d 1386.

3 . The specific sites on the Ranch where the game was taken range in distance from approximately two miles to five miles from the residence, which was not actually occupied at the time in question.

4 . Legal scholars, jurists, and practitioners alike will certainly notice the Court’s backing away, knowingly or unknowingly, from its prior decisions in Tinno, supra, and Arthur, supra, with respect to how it has previously interpreted the term "unoccupied" in the context of Indian treaty interpretation.

5 . The Interior Department has promulgated comprehensive regulations governing projects such as the Ranch and the other two segments of the Management Area. See 50 C.F.R., part 80. The Secretary of the Interior must concur in any disposition of the land, and the regulations provide for extensive federal supervision of the use and maintenance of the lands. Moreover, if disagreement arises regarding acquisition of land or operation of a project, "[fjinal determination ... rests with the Secretary." Id., at § 80.18.