No. 13190 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1977 

STATE OF MONTANA, 

Plaintiff and Appellant, 

-vsLASSO STASSO, 

Defendant and Respondent. 

Appeal from: Diskrict Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

Robert L. Fletcher, County Attorney, Thompson Falls, 

Montana 

Clayton Herron argued, Helena, Montana 

For Respondent : 

Victor F. Valgenti argued, Missoula, Montana 

Richard A. Baenen, Washington D.C. 

Submitted: January 19, 1977 

~e~ided .. APW eg 19n 

Filed : b\PI 21 I$@. 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Defendant Lasso Stasso, a duly enrolled member of the 

Confederated Salish and Kootenai Indian Tribes, was convicted in 

justice court, Thompson Falls, Montana, of a violation of the game 

laws of Montana. The specific charge was killing a deer out of 

season. This conviction was appealed to the district court and 

was set aside and the charges dismissed. The state appeals. 

The trial de novo in the district court was held January 

27, 1975. These facts were stipulated by the parties: 

1. Defendant, Lasso Stasso, is a duly enrolled member 

of the Confederated Salish and Kootenai Tribes of the Flathead 

Reservation, Montana. The Confederated Tribes were parties to the 

Treaty of Hell Gate of July 16, 1855, 12 Stat. 975, with the 

United States. 

2. Defendant shot and killed a deer on August 24, 1972, 

in the general vicinity of White Pine Creek, Sanders County, 

Montana. At the time of the incident the season was closed for 

hunting deer, pursuant to Montana law. 

3. That the location is outside the boundaries of the 

Flathead ~eservation, as established by Article I1 of the Treaty -- 

of Hell Gate of July 16, 1855, but within National Forest Service 

lands which have never been patented to any private person. 

The state relied solely on the stipulated facts. Defendant, 

however, presented the testimony of an expert witness and exhibits 

clearly outlining the aboriginal hunting territory of the Confederated 

Salish and Kootenai Tribes. The evidence indicated the deer was 

taken within this aboriginal hunting territory, but without the 

of 

confines/the present day Flathead Reservation. 
The district court found the lands upon which the offense 

occurred were open and unclaimed lands under the Treaty of Hell 

Gate and provisions of the treaty are superior to any reserved 

power of the state and therefore exempt from state regulation. The 

complaint was dismissed for failure to state the commission of a 

public offense. 

The issue to be decided is whether present day members 

of the Confederated Salish and Kootenai Tribes have a right to 

hunt free from the regulation of Montana game laws, on "open and 

unclaimed lands" by virtue of Article I1 of the Treaty of Hell Gate. 

In determining this issue, we first consider whether Forest Service 

land may be included within the meaning of "open and unclaimed 

lands" . 

The concept of aboriginal title to lands historically 

occupied by American Indians is recognized in Sac and Fox Tribe 

v. United States, 383 F.2d 991,997 (Ot.C1.1967), cert.den. 389 U.S. 

900, 88 S.Ct.220,t19 L ed 2d 217, where the court stated: 

"* * * the 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.'l.It is sometimes called 

'original title' or 'aboriginal title. 111 

Hunting and fishing rights are part and parcel with aborginal 

title. State v. Coffee, (Idaho 1976), 556 P.2d 1185. 

Aboriginal title is founded on the concept that Indian 

occupancy and use of the land prehistorically predated the present 

sovereign. This being so, we examine the terms by which the 

Indians ceded their land to the United States to determine to what 

extent Indian hunting rights on that land remain unextinguished. 
The parties stipulated the Conferedated Salish and Kootenai 

Tribes, of which the defendant is a member, were parties to the 

Treaty of Hell Gate. This treaty was executed on July 16, 1855 at 

Hell Gate in the Bitter Root Valley. Isaac I. Stevens, governor 

and superintendent of Indian affairs for the Territory of Washington represented the United States. Representative chiefs, headmen, 

and delegates of the Flathead, Kootenay, and Upper Pend dtOreilles 

Indian Tribes signed for them. 

Through the provisions of Article I of this treaty, the 

Lndians ceded all their lands to the United States: 

"ARTICLE I. The said confederated tribes of Indians 

hereby cede, relinquish, and convey to the United 

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

the country occupied or claimed by them, bounded and 

described as follows * * *." 

The treaty further provided that in exchange for the 

cession of their lands the Indians were to receive a reservation 

and monetary compensation. In addition Article I11 of the Treaty 

provided the Indians were to receive: 

"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; 

cogether with the privilege of hunting, gathering 

roots and berries, and pasturing their horses and cattle 

upon open and unclaimed land." (Emphasis added). 

rhFs Court speaking of the Treaty of Hell Gate of July 16, 

541, 

1855 in State v. McClure, 127 Mont. 534,5391 268 P.2d 629, recognized that, when they signed the treaty: 

"* 2k * the Flathead and other prairie Indian nations' 

primary interest was to protect and reserve their 

hunting rights and grounds which provided their major 

food and clothing. * * *, 
"* * * Also assured was the Indians's right to 

hunt and take game outside the reservation on 

all open and unclaimed lands. * * *I1 

The state argues the Montana Territorial Act of May 26, 

1864, 13 Stat. 85, has in some way abrogated or affected the 

rights reserved to the Tribes by the Treaty of Hell Gate. This 

is not the case. The language of that Act statesin pertinent 

part: 

"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 rights 

shall remain unextinghished by treaty between the United 

States, and such Indians J.' * *." 

The application of the provisions of the Treaty of Hell 

Gate to a fact situation such as the instant case is a matter of 

first impression in this jurisdiction. It is clear however that 

the provisions of the treaty must be considered as a reservation 

by the Indians, rather than a grant by the federal government. 

Therefore, the Indians, at the time of the treaty, reserved the 

right to hunt on open and unclaimed lands outside their present 

day reservation, but within their aboriginal hunting territory. 

The determination remaining to be made is--to what extent does 

this reservation of right remain unextinguished? 

Idaho courts have decided the instant question in that 

jurisdiction. In view of the striking similarities of the fact 

pattern of the Idaho cases with the instant case, these cases 

will be discussed here. 

State v. Arthur, 74 Idaho 251, 261 P.2d 135, 143, involved 

an attempt by the state of Idaho to enforce its hunting laws against 

a member of the Nez Perce Tribe who killed a deer out of season 

on National Forest land. The incident occurred outside the 

boundaries of the reservation, but within the area ceded to the 
federal government by the Tribe. The treaty provisions involved 

in Arthur were identical to Article I11 of the Treaty of Hell Gate. 

The Supreme Court of Idaho rejected the state's attempt to enforce 

the hunting laws upon the Indian-defendant: 

"We are not here concerned with the wisdom of the 

provisions of the treaty under present conditions nor 

with the advisability of imposing upon the Indians 

certain regulatory obligations in the interest of conserving wild life; that is for the Federal Government, 

the affected tribe, and perhaps the State of Idaho to 

resolve under appropriate negotiations; our concern 

here is only with reference to protecting the rights 

of the Indians which they reserved under the Treaty of 

1855 to hunt upon open and unclaimed land without - 

limitation, restriction or burden. 

"We hold that the rights reserved by the Nez Perce 

Indians in 1855, which have never passed from them 

to hunt upon open and unclaimed land still exist unimpaired and that they are entitled to hunt at any 

time of the year in any of the lands ceded to the 

federal government though such lands are outside the 

boundary of their reservation, * *" 

State v. Tinno, 94 Idaho 759, 497 P.2d 1386, 1391, is in 

accord with Arthur. In Tinno a member of the Shoshone-Bannock 

Tribes was charged with taking a chinook salmon with a spear in 

violat ion of Idaho fishing regulations. The Idaho Supreme Court 

found the Tribes' treaty gave the right to hunt and fish on unoccupied lands of the United States even though fishing was not 

specifically mentioned in the language of the treaty: 

"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. 

"* * * 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* * *." 
State v. Coffee, (Idaho 1976), 556 P.2d 1185, was decided 

in November 1976. In Coffee a member of the Kootenai Tribe was 

charged with the killing of two deer out of season on private 

property. The Idaho Supreme Court affirmed the district court conviction on the grounds the ~ribe's aboriginal hunting right only 

applied to open and unclaimed lands and not to lands owned by 

private parties. 

We find the Idaho cases interpreting Indian treaties containing language dealing with Indian hunting rights common to 

the Treaty of Hell Gate persuasive in the instant case. Article 

111 of the Treaty of Hell Gate reserves for present day members of 

the tribes signing that document the right to hunt game animals 

free from state regulation on lands ceded by the tribes to the , 

federal government. However, it is clear this right is limited to 

land which is open and unclaimed at the time of the incident, Land 

owned or occupied by private parties is in no way open and unclaimed within the contemplation of this treaty. 

Prima facie, all persons within this state are subject to 

its criminal laws and come within the jurisdiction of its courts. 

If an exception exists it must be shown by the defendant. State 

/ c3& 

v. Spotted Hawk, 22 Mont. 33, 55 P. 433% State v. Buckaroo Jack, 

30 Nev. 325, 96 P. 497. Therefore in the instant case defendant 

had the burden of proving the alleged offense was committed at a 

location which deprived the state of jurisdiction to prosecute. 

In State v. Arthur, 74 Idaho 251, 261 P.2d 135,141, the 

term "open and unclaimed lands" was interpreted as: 

"* * *lands as were ,not settled and occupied by the 

whites under possessory rights or patent or otherwise 

appropriated to private ownership and was not intended 

to nor did it exclude lands title to which rested in 

the federal government * * *." 
We find this definition persuasive in light of the fact that 

the treaty interpreted in Arthur was identical to the Treaty 

of Hell Gate. 

We find the National Forest lands involved herein are open 

and unclaimed lands. State v. Arthur, supra; Confederated Tribes 

of Umatilla Indian Res. v. Maison, 262 F.Supp. 871 (D.Ore.1966), 

affirmed in Holcomb v. Confederated Tribes of Umatilla Indian Res., 

382 F. 2d 1013 (9th Cir . 1967). 

The judgment of the district court is affirmed. 

F /-- \ 

- --- h~~ c_ -p-rl . , Wd 

Justice / 

We Concur: 

Chief Justice