NO. 92-491 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

v. 

RUBEN HORSEMAN, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twelfth Judicial District, 

In and for the County of Hill, 

The Honorable John Warner, Judge presiding. 

For Appellant: 

Lawrence A. LaFountain, Attorney at Law, 

Havre, Montana 

For Respondent: 

Hon. Joseph P. Mazurek, Attorney General, 

Carol Schmidt, Assistant Attorney General, 

Helena, Montana 

David G. Rice, Hill County Attorney, Havre, 

Montana; Brian Lilletvedt, Special Prosecutor, 

Havre, Montana 

Filed: 

Submitted on Briefs: August 26, 1993 

Decided: December 27, 1993 
Justice Fred J. Weber delivered the Opinion of the Court, 

This is an appeal from the Twelfth Judicial District Court, 

Hill County, affirming a charge of possession of an unlawfully 

killed game animal in violation ctf -3-lll(1) MCA, against 

Ruben Horseman. We affirm, 

We restate the issues on appeal: 

1. Did the District Court err in determining that Ruben Horseman, 

an enrolled tribal member of the Fort Belknap Indian Reservation, 

had possession of an illegally killed bighorn sheep? 

2. Did the District Court err in determining that it had 

jurisdiction to rule in Horseman's case? 

3. Did the District Court properly conclude that no evidence was 

presented that demonstrated that any established Rocky Boy's Indian 

~eservation's extradition procedures were violated or that 

extradition was, in fact, required? 

On October 21, 1990, Game Warden Mark Earnhardt (Earnhardt) of 

the Montana Department of Fish, Wildlife and Parks, observed a 

truck traveling west on a county road in Hill County. The truck 

had blood runs on the tailgate and was headed for the Rocky Boy's 

Reservation. Unable to pursue the vehicle because he was behind a 

locked gate, Earnhardt radioed Tribal Warden Matt Denny (Denny) on 

the Rocky Boy's Reservation for assistance in stopping the vehicle. 

Both parties indicate that upon entering the reservation, 

Ruben Horseman (Horseman) was stopped by Denny who discovered a 

freshly killed bighorn sheep in the back of Horseman's suburban. 

Upon his arrival, Earnhardt issued Horseman citations for 

possessing an unlawfully killed bighorn sheep, transporting an 

unlawfully killed bighorn sheep and taking a bighorn sheep without 

a license. 
These charges were brought in Justice Court for Hill County, 

Horseman's motion to dismiss the charge of taking of a bighorn 

sheep was granted by the court because Hill County was an improper 

venue for a crime committed outside of the county. The record 

indicates that the sheep was killed in Blaine County. The 

remaining two charges, possessing and transporting an illegally 

killed game animal were tried to a jury which found Horseman guilty 

of both charges on November 13, 1991. Horseman was fined $500, 

ordered to pay $2,000 restitution and had his hunting privileges 

suspended for thirty months. 

Horseman appealed this judgment to the Twelfth Judicial 

District Court. He filed a pretrial motion to dismiss the charges 

against him. The District Court granted Horseman's motion to 

dismiss the charge of transporting an illegally killed game animal 

but denied dismissal of the charge of possession of such animal. 

On July 17, 1992, Horseman entered a conditional plea of 

wguilty*8 pursuant to 5 46-12-204, MCA, for the charge of possession 

of an unlawfully killed game animal in violation of 5 87-3-111(1), 

MCA. Horseman's conditional plea contained three issues which were 

subject to appeal: 

1. That he had the legal right to kill the animal 

pursuant to the 1855 Treaty between his tribe, the Gros 

Ventre, and the United States; 

2. That he was unlawfully arrested on the Rocky Boy's 

Reservation; and 

3. That he was unlawfully extradited from the Rocky 

Boy's Reservation. 
The District Court accepted Horseman's plea and found him guilty of 

possession of an unlawfully killed game animal in violation of g 

87-3-lll(1) MCA, fined him $500 and suspended his hunting 

privileges until January 23, 1995. Norseman filed a notice of 

appeal on August 20, 1992. 

Did the District Court err in determining that Ruben Horseman, 

an enrolled tribal member of the Fort Belknap Indian Reservation, 

had possession of an illegally killed bighorn sheep? 

Horseman argues that 1851 and 1855 Treaties between the Gros 

Ventre Tribe and the United States reserved the tribal rights to 

hunt in traditional hunting grounds. According to Horseman, 

because he killed the sheep on federal land, he is not subject to 

State regulations. 

The State argues that neither the 1851 or 1855 Treaty, nor any 

subsequent agreement affecting the Gros Ventre Tribe and the Fort 

Belknap Treaty, reserved a right for tribal members to hunt on 

ceded land, or other off-reservation land. 

Generally, states have jurisdiction to regulate the wildlife 

within their borders. Baldwin v. Fish & Game Commln (1978), 436 

U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354. Tribal members are 

subject to these state laws when they are off-reservation, unless 

off-reservation hunting and fishing rights have been expressly 

reserved by the tribe when they ceded lands to the federal 

government. Oregon v. Klamath (l985), 473 U.S. 753, 105 S.Ct. 

3420, 87 L.Ed.2d 542. Therefore, in order for the Gros Ventre 

Tribe, and hence Horseman, to have the right to be free from state 
fish and game regulations while hunting off-reservation, the 

treaties made between the tribe and the United States must 

specifically reserve this off-reservation privilege. 

We note that Norseman mentioned only the 1855 Treaty when he 

made his conditional plea. He now argues both the 1851 and 1855 

Treaty. Neither treaty provides the reservation he argues. 

The Treaty of Fort Laramie was signed in 1851 by the United 

States and various tribes, including the Gros Ventre. The purposes 

of the 1851 Treaty were to assure safe passage for settlers across 

lands of various Indian tribes, to compensate tribes for loss of 

buffalo, other game animals, timber and forage, to delineate tribal 

boundaries, to promote intertribal peace and to establish a way of 

identifying Indians who committed depredations against non-Indians. 

Montana v. U.S. (1981), 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 

493; Treaty of Fort Laramie, Act of September 17, 1951, 11 Stat. 

749. The tribes agreed to stay in their respective territories. 

Article 5 is a tribe-by-tribe list of each tribe's respective 

territory. At the end of this article is the following paragraph: 

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 

thev do not surrender the ~rivileae of huntina. fishina, 

or ~assinu over anv of the tracts of countrv heretofore 

described. 

The phrase =heretofore described" limits the tribal hunting 

privilege to that tract of land specified for each tribe. The 

tribes' respective territories, however, continued to get smaller 

during subsequent treaties. 
In 1855, a treaty with the Blackfeet Nation, of which the Gros 

Ventre was a tribe, set the boundaries of the Blackfeet territory 

and established a common hunting ground for 99 years. Treaty with 

the Blackfeet, Act of October 17, 1855, 11 Stat. 657. This is an 

express reservation for 99 years - which would have ended in 1954. 

Despite subsequent treaty documents which diminished tribal lands, 

the hunting privilege would have been retained on this larger tract 

of land only until 1954, unless expressly revoked before the 99 

years had elapsed. 

In 1874, the 43rd Congress set up a reservation for the Gros 

Ventre, Piegan, Blood, Blackfeet and River Crow. Act of April 15, 

1874, 18 Stat. 28. The reservation which was set up during the 

first session of the 43rd Congress in 1874, was reduced in size by 

the 50th Congress in 1888. Act of May 1, 1888, 25 Stat. 113. 

Article I1 of Chapter 213, published in 1888, states that: 

The said Indians hereby cede and relinquish to the United 

States all their right, title, and interest in and to all 

the lands embraced within the aforesaid Gros Ventre, 

Piegan, Blood, Blackfeet and River Crow Reservation, not 

herein, specifically set apart and reserved as separate 

reservations for them, and do severally agree to accept 

and occupy the separate reservations to which they are 

herein assigned as their permanent homes, and they do 

hereby severally relinquish to the other tribes or bands 

respectively occupying the other separate reservations, 

all their right, title, and interest in and to the same, 

reserving to themselves only the reservation herein set 

apart for their separate use and occupation. 

What followed was the boundaries for the Fort Peck and Fort Belknap 

reservations. Nothing in Chapter 213 refers to hunting. 

Again, in 1896, an agreement was signed between the United 

States and the Indians of the Fort Belknap Reservation, 54th 
Congress, Session I. Act of June 10, 1896, Chapter 398, 29 Stat, 

350, In this agreement, the Indians once again ceded land to the 

United States for which they received payment. Nothing in this 

chapter reserved hunting rights on lands ceded, 

Of all the treaties and subsequent amendments, only the 1855 

Treaty reserves hunting rights to co~nman hunting grounds. That 

reservation was for 99 years only and has now been extinguished. 

Horseman cites State v. Stasso (1977) , 172 Mont. 242, 563 P.2d 

562, as precedent for the fact that he as a tribal member is 

permitted to hunt in "open and unclaimed*' lands off the 

reservation. Stasso interpreted a treaty with the Salish and 

Kootenai tribes and is not precedent for a separate treaty with the 

Gros Ventre. 

Stasso involved an interpretation of the Treaty of Hell Gate, 

signed in 1855. The tribes involved in the Hell Gate Treaty 

specifically reserved the right to hunt and fish in open and 

unclaimed areas: 

The exclusive right of taking fish in all the streams 

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 privileae of 

huntinq, gathering roots and berries, and pasturing their 

horses and cattle upon open and unclaimed land. (Emphasis 

added. ) 

Article 11, Treaty of Hell Gate, Act of July 16, 1855, 12 Stat. 

975. The Stasso case interprets "open and unclaimed landsn to 

include National Forests, where the particular animal in question 

was killed. 
The treaties involved in the case before us do not contain 

such wording. The 1855 Treaty with the Blackfeet Nation contains 

the only express reservation of hunting rights and that reservation 

of rights ended in 1954. Therefore, Horseman was subject to the 

State game laws while off the reservation. 

We hold that the District Court did not err in determining 

that Ruben Horseman had possession of an illegally killed big horn 

sheep. 

Did the District Court err in determining that it had jurisdiction 

to rule in Horseman's case? 

Horseman argues that the District Court had no jurisdiction to 

rule in this case because he is a tribal member and the offense 

took place on tribal land. The State argues that the offense 

occurred off the reservation and that Horseman was voluntarily 

place& in state custody by tribal =~thori?qy. 

Horseman filed a pretrial motion with the District Court to 

dismiss his case for lack of personal jurisdiction to rule on the 

case. The court denied the motion. Horseman then entered a 

conditional guilty plea to the District Court pursuant to 9 46-12- 

204 (3), MCA: 

With the approval of the court and the consent of the 

prosecutor, a defendant may enter a plea of guilty, 

reserving the right, on appeal from the judgment, to 

review the adverse determination of any specified 

pretrial motion. If the defendant prevails on appeal, 

the defendant must be allowed to withdraw the plea. 

Horseman's pretrial motion was one to dismiss for lack of 

jurisdiction. We review a district court decision of denial of a 
motion to dismiss as to whether the court abused its discretion. 

Gold Reserve Corp. v. McCarty (1987), 228 Mont. 512, 744 P.2d 160. 

Horseman, as defendant, had the burden of proving to the court 

that the alleged offense was committed at a location which deprived 

the State of jurisdiction to prosecute. Stasso, 172 Mont. at 248, 

563 P.2d at 565. The record is devoid of any evidertc@ to indicate 

that the offense for which Horseman is charged occurred on his own 

reservation, thus denying Hill County jurisdiction. While Horseman 

argues that the offense occurred on the reservation, statements 

included in an appellate brief but which are not in the record will 

not be considered on appeal. Credit Associates v. Harp (1990), 243 

Mont. 281, 794 P.2d 343. 

The only hard evidence that exists in this file is found in 

the three original tickets issued by Earnhardt to Horseman. Those 

tickets state that all three alleged offenses occurred in Hill 

County, at a location off the Rocky Boy's reservation. When 

disputes involving Indians arise within the state but outside of 

Indian reservation boundaries, the state may assume jurisdiction 

over the matter. Application of Bertelson (1980), 189 Mont. 524, 

617 P.2d 121. Horseman has provided no evidence that jurisdidction 

lay with another sovereign other than the State of Montana. 

Further, Horseman was not a member of the tribes included 

within the Rocky Boy's Reservation; he is a member of the Gros 

Ventre tribe living on the Fort Belknap Reservation. He is, for 

purposes of this action, a wnon-member~~ Indian on the Rocky Boy's 

Reservation where he was detained. At the time of Horseman's 
crime, Indian tribes lacked misdemeanor criminal jurisdiction over 

non-member Indians. Duro v. Reina (1990), 495 U.S. 676, 110 S.Ct. 

2053, 109 L.Ed.2d 693. Rocky Boy ' s tribes, therefore, had no 

jurisdiction for Horseman's misdemeanor crime because Horseman was 

a member of another tribe from the Fort Belknap Reservation. 

has now been superseded by federal statute reinstating a 

tribe's misdemeanor criminal jurisdiction over non-members. That 

reinstatement did not take effect, however, until October 18, 1991. 

The crime with which we are concerned took place in October of 

1990, a full year before the tribes regained their misdemeanor 

criminal jurisdiction over non-member Indians. See Act Nov. 5, 

1990, P.L. 101-511, 5 8077(d), 104 Stat. 1893; Oct. 9, 1991, P.L. 

102-124, § 1 105 Stat. 616, was repealed by Act Oct. 28, 1991, 

P.L. 102-137, 5 1, 105 Stat. 646. 

We conclude that the District Court had proper jurisdiction to 

rule in this case. Therefore, we hold that the District Court did 

not err in assuming jurisdiction over Horseman's case. 

Did the District Court properly conclude that no evidence was 

presented that demonstrated that any established Rocky Boy's Indian 

Reservation's extradition procedures were violated or that 

extradition was, in fact, required? 

Horseman argues that he was illegally transported off the 

reservation. His contention is that the Rocky Boy's Tribal 

extradition procedures were not used. The State contends that the 

act of possessing and transporting an illegally killed game animal 

occurred off the reservation in Hill County and that Horseman's 
arrest and subsequent exit from the reservation occurred with the 

complete cooperation of tribal authorities. 

The District Court determined that Horseman's arrest occurred 

with the help and cooperation of tribal authorities. The court 

then determined that no evidence was presented by Horseman that 

Rocky Boy% extradition procedures were violated or that 

extradition was even required. 

Both parties to this action have failed to present to this 

Court or to the lower court any of the appropriate case law upon 

which this case must be decided. Three months before Horseman 

illegally killed the big horn sheep, the United States Supreme 

Court in a well publicized opinion stated that: 

[the] assertion of jurisdiction by the Tribe over an 

Indian who was not a member would violate the equal 

protection guarantees of the Indian Civil Rights Act. 

m, 110 S.Ct. at 2058. The Duro Court went on to hold that: 

Indian tribes lack jurisdiction over persons who are not 

tribe members. 

m, 110 S.Ct. at 2059. Thus, according to the law at the time of 

the crime, the Rocky Boy's tribes had no misdemeanor criminal 

jurisdiction over Horseman, a member of the Fort Belknap 

Reservation. 

Although the m decision has been superseded by statute, the 

decision is still good law as it involves tribal sovereignty. The 

case has been cited as precedent for the proposition that: 

Where jurisdiction to try and punish an offender rests 

outside the tribe, tribal officers may exercise their 

power to detain the offender and transport him to the 

proper authorities. 
m, 110 S.Ct. at 2066. Primeaux Y. Leapley (S.D. 1993), 502 

N.W.2d 265, 270, and State v. Schmuck (Wash. 1993), 850 P.2d 1332, 

1339. 

Here, the State offered the Primeaux decision in a "Notice" 

filed at the eleventh hour on November 12, 1993. The notice was an 

attempt to present this Court with additional "recentw authority in 

the Horseman case. The "recentsf Primeaux decision cited by the 

State was actually decided in June of 1993, two months before the 

Horseman action was filed in this Court. It was presented to the 

Court three months after the August, 1993, filing date of the last 

brief on appeal. The State's "Noticen is inappropriate. It does 

more than simply add a more "recentm authority on an already argued 

legal theory--it adds a totally new legal argument to the case, 

heretofore unmentioned in either party's court documents. 

In its appellate briefs, neither party argued the 

decision which was relied on by the primeaux court. Nor did either 

party attach any importance to Horseman's non-member status at the 

time of the crime. Neither party mentions tribal sovereignty. The 

only issue argued on appeal is extradition and whether it was 

needed or not. 

The underlying issue in this case is not whether the formal 

procedures for extradition were needed or applied correctly, but 

whether the Rocky Boy's warden as an officer of the tribe had the 

jurisdiction under the facts of this case to cooperate with 

Earnhardt and detain Horseman. The United States Supreme Court has 

stated that the tribes also possess their traditional and 
undisputed power to exclude persons whom they deem to be 

undesirable from tribal lands. Brendale v. Confederated Tribes & 

Bands of the Yakima Nation (l989), 492 U.S. 408, 109 S.Ct. 2994, 

106 L.Ed.2d 343. Subsequent to Brendale, the Duro Court stated 

that: 

Tribal law enforcement authorities have the power to 

restrain those who disturb public order on the 

reservation, and if necessary, to eject them. 

Earnhardt radioed Denny that the suspect was approaching the 

reservation and that he could not get to him before he entered the 

reservation. Earnhardt asked for Denny's help in stopping the 

suspect whom he suspected had possession of an illegally killed big 

horn sheep. Denny stopped Horseman, discovered the sheep, and 

detained Horseman for several minutes until Earnhardt arrived. We 

conclude that under the precedent concerning sovereignty of a 

tribe, the Rocky Boy's warden acted appropriately within his tribal 

jurisdiction by detaining and then relinquishing Horseman to Hill 

County authorities. 

We conclude that Horseman has offered no evidence that would 

indicate that the Chippewa-Cree tribal code applies to the facts of 

this case. The facts show that a tribal officer detained Horseman 

upon request from Earnhardt and that according to fundamental 

principles of tribal sovereignty, the tribal officer had authority 

to relinquish Horseman to Earnhardt. The record indicates that any 

consideration of extradition is extraneous to the facts of this 

case. 
We hold the District Court properly concluded that no evidence 

was presented that demonstrated any established Rocky Boy's Indian 

Reservation extradition procedures were violated or that 

extradition was, in fact, required, 

Affirmed. 

Justices 
Justice Terry N. Trieweiler dissenting. 

I dissent from that part of the majority opinion which 

concludes that Ruben Horseman's arrest by a Montana Game Warden did 

not violate the extradition laws of the Rocky Boy's Reservation. 

The Chippewa-Cree Law and Order Code, Title IV, Part 1, 

Section 1.12, provides in relevant part that: 

(2) An alleged fugitive may not be turned over to 

state or federal authorities until after the person has 

been afforded a hearing in Tribal Court to determine 

whether probable cause exists as to the allegation of a 

crime by that person. 

The District Court ignored the tribal extradition law based on 

its erroneous conclusion that it had no evidence that the Tribe's 

extradition rules had been violated. However, Rule 202 (d) , 

M.R.Evid., provides that: 

A court shail take judicial notice: 

(1) of the common law, constitutions and statutes 

of the United States and of this and every other state, 

territory and jurisdiction of the United States. 

[Emphasis added]. 

The Rocky Boy's Reservation is a jurisdiction within the 

United States and the District Court had an obligation to take 

judicial notice of the extradition procedure provided for in its 

Law and Order Code. 

The majority opinion disposes of Horseman's invocation of the 

Tribe's extradition procedure based on decisions which have nothing 

to do with this issue. The U.S. Supreme Court's ill-advised 

decision in Dcrro v. Reirza (lggQ), 495 U.S. 676, 110 S. Ct. 2053, 109 
L. Ed. 2d 693, dealt with a tribe's authority to prosecute 

non-members for misdemeanors committed on the reservation. It had 

nothing to do with the Tribe's authority to establish reasonable 

extradition procedures for those who commit crimes elsewhere but 

are apprehended on the reservation. 

Neither is the fact that tribes have undisputed authority to 

exclude undesirable people from their land relevant. The fact in 

this case is that the Tribe has established a procedure by which 

undesirable people may be excluded, and it was not followed. The 

fact that a tribal law enforcement officer participated in the 

violation of the Tribe's extradition procedure makes no difference. 

It was still violated, and its violation was an infringement on the 

sovereignty of the Rocky Boy's Reservation. Such infringement 

should not be tolerated, and this fact aione is a sufficient basis 

for invalidating Horseman's arrest. 

I agree with the decision of the Ninth Circuit Court of 

Appeals in Arizona exrel. Mem'llv. Turtle (9th Cir. 1969), 413 F.2d 683, 

when it held that the State of Arizona could not ignore the Navajo 

Tribe's extradition laws. In that case, the Ninth Circuit stated 

that: 

We have been referred to no specific Congressional action 

limiting the power of the Navajo tribal government to 

deal with the extradition of Indians resident within the 

Reservation or granting to the State of Arizona the 

authority to exercise extradition jurisdiction over such 

residents. In these circumstances, Arizona's right to 

exercise the jurisdiction claimed must be determined in 

light of whether such exercise would "infring[e] on the 
right of reservation Indians to make their own laws and 

be ruled by them," (Williams v. Lee, supra at p. 220 of 

358 U.S., at p. 271 of 79 S.Ct.) or, as the Williamsv 

test was characterized by the court in Kake, Organized 

Village of v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 

573 (1961), "whether the application of that law would 

interfere with reservation self-government. If Id. at 

p. 67, 82 S.Ct. at p. 567. 

Applying these considerations, we conclude that 

Arizona's exercise of the claimed jurisdiction would 

clearly interfere with rights essential to the Navajo's 

self-government. The essential and intimate relationship 

of control of the extradition process to the right of 

self-government was recognized long ago in Kentucky v. 

Dennison, 24 How. 66, 16 L.Ed. 717 (186l), holding that 

there is no power, state or federal, to compel a state to 

perform its constitutional duty of extradition. 

In 1956, the Navajo Tribal Council, the tribal 

legislative body, adopted a Resolution providing 

procedures for Indian extradition. . . . The Tribe has 

thus codified and does now exercise its extradition 

power. This power cannot now be assumed by or shared 

with the State of Arizona without lvinfring[ing] on the 

right of reservation Indians to make their own laws and 

be ruled by them." Williams v. Lee, supra at p. 220 of 

358 U.S., at p. 271 of 79 Sect. [Footnote omitted]. 

Likewise, we have been referred to no federal action which 

would limit the right of the Rocky Boy's Reservation to deal with 

the extradition of individuals found and arrested on tribal land 

for crimes which were committed elsewhere. To limit that authority 

by judicial decision, as the majority has done, clearly interferes 

with the rights essential to the Tribe's self-government. 

Therefore, I dissent from that part of the majority opinion which 

concludes that Horseman's arrest was not illegal because it did not 
violate the extradition procedures established by the Chippewa-Cree 

Law and Order Code. 

Justice William E. Hunt, Sr., joins in the foregoing dissent. 
December 27, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Lawrence A. JAFountain 

Attorney at Law 

P.O. Box 1532 

Havre, MT 59501 

Hon. Joseph P. Mazurzk, Attormy General 

Carol Schmidt, Assistant 

Justice Bldg. 

Helena, MT 59620 

David G. Rice 

Hill County Attorney 

P. 0. 3ux 912 

Havre, MT 59501-0912 

Brian Lilletvedt 

Special Prosecutor 

P.O. Box 7152 

Havre, MT 59501 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY: 

Deputy 4