United States v. Finch

395 F. Supp. 205, 1975 U.S. Dist. LEXIS 12938
CourtDistrict Court, D. Montana
DecidedApril 9, 1975
DocketCR-74-25-BLG
StatusPublished
Cited by12 cases

This text of 395 F. Supp. 205 (United States v. Finch) is published on Counsel Stack Legal Research, covering District Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Finch, 395 F. Supp. 205, 1975 U.S. Dist. LEXIS 12938 (D. Mont. 1975).

Opinion

*207 MEMORANDUM OPINION AND ORDER

BATTIN, District Judge.

The information filed herein on May 16, 1974, charges:

“That on or about May 5, 1974, in the District of Montana, JAMES JUNIOR FINCH, within the exterior boundaries of the Crow Indian Reservation, did without lawful authority or permission and for the purpose of fishing thereon, unlawfully and knowingly go upon land identified as located in Section- 8, Township 5 South, Range 32 East, M.P.M., Big Horn County, Montana, being a portion of the Big Horn River. The said JAMES JUNIOR FINCH was standing upon land belonging to the State of Montana for the benefit and use of its State Fish and Game Commission, while fishing in said Big Horn River, said river being Indian trust land, closed to hunting and fishing to all non-Crow citizens, all contrary to the provisions of 18 U.S.C. 1165.”

On June 14, 1974, the defendant filed a motion to dismiss said information. The parties submitted extensive and well-considered memoranda of law. On September 4, 1974, an order was filed wherein I denied the motion to dismiss and noted that the information was sufficient on its face. An Agreed Statement of Facts and additional memoranda of law have been filed. Additionally, counsel for the Crow Tribe of Indians and the State of Montana, Department of Fish and Game, have appeared herein as amici curiae.

After a thorough review of the file, I am compelled to reconsider my order dated September 4, 1974, wherein I denied defendant’s motion to dismiss. I conclude that the information is not sufficient on its face for several reasons.

First, the defendant is charged with a violation of 18 U.S.C.A. § 1165, which reads as follows:

“Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed -by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited.”

An essential element to the offense charged against the defendant herein and as defined by 18 U.S.C. § 1165 is that the defendant go upon “any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States.”

I have previously held that the portion of the Big Horn River bed in question is held by the United States in trust for the Crow Tribe of Indians. Order of this Court dated September 4, 1974, in the case now at issue, and United States v. Haug and Mill, D.Mont., Billings Div., Misc.Crim. No. 511 (June 9, 1971) [see appendix]. After a further review of the pertinent treaties and the nature of the Tribe’s title, I have concluded otherwise and by this memorandum opinion and order specifically overrule my holding in these two cases.

The title of the Crow Tribe to a large area (which now includes their present-day reservation) was recognized by the Treaty of Fort Laramie, signed in 1851. 11 Stat. 749, II Kapp. 594. Article 5 of that treaty reads in pertinent part:

“The aforesaid Indian nations do hereby recognize and acknowledge the following tracts of country, included within the metes and boundaries hereinafter designated, as their respective territories, viz:
*208 “The territory of the Crow Nation, commencing at the mouth of Powder River on the Yellowstone; thence up Powder River to its source; thence along the main range of the Black Hills and Wind River Mountains to the head-waters of the Yellowstone River; thence down the Yellowstone River to the mouth of Twenty-five Yard Creek; thence to the head waters of the Muscle-shell River; thence down the Muscle-shell River to its mouth; thence to the head-waters of Big Dry Creek, and thence to its mouth.
“It is, however, understood that, in making this recognition and acknowledgement, the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.”

The Treaty of Fort Laramie, 1851, involved some eight Indian Nations. The treaty’s background has been thoroughly studied by the Courts and need not be exhaustively repeated here. 1 However, records reveal that

“ * * * the Government sought to initiate treaty negotiations primarily to promote peace among these tribes, to protect settlers and other travelers along the Platte and Arkansas Rivers, and to help establish responsibility for any depredations that might be committed in a particular area.” Sioux Tribe v. United States, Ct.Cl., 500 F.2d 458, 464 (1974).

The Treaty of Fort Laramie, 1851, did recognize the Crow Indian title to the land described therein. See Crow Tribe of Indians v. United States, 284 F.2d 361, 371, 151 Ct.Cl. 281 (1960).

However, a reservation was not established until the enactment of the Treaty with the Crow Indians, 1868. 15 Stat. 649. See United States v. Powers, 9 Cir., 94 F.2d 783, 785 (1938). Under this treaty, the territory for the Crows was significantly reduced. Article II of that treaty reads as follows:

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Related

State v. Taylor
810 A.2d 964 (Court of Appeals of Maryland, 2002)
Bryant v. Taylor
797 F. Supp. 456 (D. Maryland, 1992)
United States v. The State Of Montana
604 F.2d 1162 (Ninth Circuit, 1979)
United States v. The Allied Towing Corporation
602 F.2d 612 (Fourth Circuit, 1979)
United States v. State of Montana
604 F.2d 1162 (Ninth Circuit, 1979)
United States v. Montana
457 F. Supp. 599 (D. Montana, 1978)
United States v. State of Mont.
457 F. Supp. 599 (D. Montana, 1978)
Finch v. United States
433 U.S. 676 (Supreme Court, 1977)
United States v. James Junior Finch
548 F.2d 822 (Ninth Circuit, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
395 F. Supp. 205, 1975 U.S. Dist. LEXIS 12938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-finch-mtd-1975.