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 

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# 21I$@.Mr. JusticeJohn Conway Harrison delivered the Opinion of the Court.

Defendant Lasso Stasso, a duly enrolledmember 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 stateappeals. The trialde novo in the district court was held January 

### 27, 1975. These factswere 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 generalvicinity of White Pine Creek, Sanders County, Montana. Atthe time of the incident the season was closed for hunting deer, pursuant toMontana law. 

### 3. That the location 

### isoutside the boundaries of the Flathead ~eservation, as establishedby 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 staterelied 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 toany reserved power of the stateand therefore exempt from stateregulation. The complaint was dismissed for failure to state the commission of a public offense. The issue tobe decided iswhether present day members of the Confederated Salishand 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 titleto lands historically occupied by American Indians isrecognized 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 arepart and parcel with aborginal title. State

### v. Coffee, (Idaho 1976), 556 P.2d 1185. Aboriginal titleis founded on the concept that Indian occupancy and use of the land prehistorically predated the present sovereign. This being so, we examine the termsby which the Indians ceded their land to the United States to determine towhat 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 treatywas executed on July 16, 1855 at Hell Gate inthe BitterRoot 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 alltheir lands to the United States: "ARTICLE I. The said confederated tribes of Indians hereby cede, relinquish, and convey to the United States alltheir right, title, and interest inand to the country occupied or claimed by them, bounded and described as follows

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# **." The treaty further provided that inexchange for the cession of their lands the Indians were to receive a reservation and monetary compensation. In additionArticle I11 of theTreaty provided the Indians were to receive: "The exclusive right of taking fish inallthe streams running through orbordering saidreservation is further secured to said Indians; as also the right of taking fishatallusual and accustomed places, incommon with citizens of the Territory, and of erecting temporary buildings for curing; cogether with theprivilege 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 Statev. McClure, 127Mont. 534,5391268 P.2d 629, recognized that, when they signed the treaty: 

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# * the Flathead and otherprairie Indian nations' primary interestwas toprotect and reserve their hunting rights and grounds which provided theirmajor food and clothing.

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# **Also assuredwas the Indians's right to hunt and take game outside the reservation on all open and unclaimed lands.

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### The state argues the Montana TerritorialAct ofMay 

### 26, 1864, 13 Stat. 85,has in someway abrogated or affected the rights reserved to the Tribesby the Treaty of Hell Gate. This is not the case. The language of thatAct statesinpertinent part: "That nothing in this act contained shallbe construed to impair the rights of person or property nowpertaining 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 aboriginalhunting 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. Inview of the striking similaritiesof 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 Tribewho 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 thefederal government by the Tribe. The treatyprovisions involved inArthur were identical toArticle 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 arenot 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 conservingwild life; that is for the Federal Government, the affected tribe, and perhaps the Stateof Idaho to resolve under appropriatenegotiations; our concern here 

### isonly with reference toprotecting the rights of the Indians which they reserved under the Treaty of 1855 tohunt upon open and unclaimed land without

# - limitation, restriction orburden. "We hold that the rights reserved by the Nez Perce Indians in 1855, which have never passed from them tohunt upon open and unclaimed land stillexistunimpaired and that they are entitled tohunt atany time of the year inany of the lands ceded to the federal government though such lands are outside the boundary of their reservation, 

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Statev. Tinno, 94 Idaho 759, 497 P.2d 1386, 1391, 

### is in accord withArthur. InTinno a member of the Shoshone-Bannock Tribes was charged with taking a chinook salmon with a spear in violation of Idaho fishing regulations. The Idaho Supreme Court found the Tribes' treaty gave the right to hunt and fishon unoccupied lands of the United States even though fishingwas not specifically mentioned in the language of the treaty: "The signatory Indians had roamed atwilland essentially inpeace among themselves. They did not ina 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 settleon a permanent basis they 

### stillwere expecting rights toharvest food on the unsettled lands as a means of subsistence and as an integral part of theirway of life. 

# "*** In order tobe fairwe must attempt to give effect to the terms of the treaty as those terms 

### were understood by the Indian representatives*

# **."Statev. Coffee, (Idaho 1976), 556 P.2d 1185, was decided inNovember 1976. InCoffee 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 toopen and unclaimed lands and not to lands owned by private parties. We find the Idaho cases interpreting Indian treaties containing language dealingwith Indian hunting rights common to the Treaty of Hell Gate persuasive in the instant case. Article 111 of the Treaty of Hell Gate reserves forpresent day members of the tribes signing that document the right tohunt game animals free from stateregulation on lands ceded by the tribes to the

, federal government. However, it is clear this right 

### is limited to land which 

### isopen and unclaimed atthe time of the incident, Land owned or occupied by privateparties 

### is inno way open and unclaimed within the contemplation of this treaty. Prima facie, allpersons within this stateare subject to 

### its criminal laws and come within thejurisdiction of 

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

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# c3& v. Spotted Hawk, 22 Mont. 33, 55 P. 433% Statev. Buckaroo Jack, 

### 30 Nev. 325, 

### 96 P. 497. Therefore inthe instant case defendant had the burden of proving the alleged offensewas committed ata locationwhich deprived the stateof jurisdiction toprosecute. In Statev. Arthur, 74 Idaho 251, 261 P.2d 135,141, the term "open and unclaimed lands" was interpreted as: 

# "** *lands aswere,not settled and occupied by the whites under possessory rights orpatent or otherwise appropriated toprivate ownership and was not intended tonor did it exclude lands titletowhich rested in the federal government

# ***."We find this definition persuasive in light of the fact that the treaty interpreted inArthur 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 inHolcomb v. Confederated Tribes of Umatilla Indian Res., 382 F.2d 1013 (9th Cir

# . 1967). The judgment of the district court 

### isaffirmed.



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We Concur:

Chief Justice