372 P.3d 560
Or. Ct. App.2016Background
- Defendant (Nez Perce member) was charged in Nov 2008 with four misdemeanor counts for taking/possessing two bighorn sheep killed on BLM land south of the Powder River; he lacked a required permit.
- Pretrial dispute centered on whether the 1855 Nez Perce–U.S. treaty reserved hunting rights on the kill site; court initially limited treaty evidence to ‘‘ceded land’’ but mid-trial reconsidered following State v. Buchanan.
- Trial began Oct 15, 2009; after openings and two witnesses the court announced a change of law view, sent jury home, and later declared a mistrial (Nov 2009) to resolve treaty scope issues.
- The court held additional hearings (Jan–Mar 2010) on treaty scope, denied defendant’s motions to dismiss/demurrer as prematurely decided, and set a bench trial for June 2011; defendant also moved to dismiss for statutory speedy-trial violation.
- At the June 2011 bench trial the court applied a Buchanan-style test (open/unclaimed land; ceded? if not, was it an aboriginal hunting ground used/occupied regularly?) and found defendant guilty, concluding the Nez Perce historically did not use/occupy the area south of the Powder River for hunting.
Issues
| Issue | State's Argument | Bronson's Argument | Held |
|---|---|---|---|
| Was defendant denied a speedy trial under former ORS 135.747? | Delay reasonable; defendant was "brought to trial" when trial first commenced in Oct 2009. | Nearly 3-year delay (Nov 2008–2011) was unreasonable and attributable to the State; dismissal required. | Court follows State v. Garner: a commenced trial (even if ending in mistrial) satisfies "brought to trial"; net delay to Oct 2009 (~11 months) was reasonable given treaty complexity — no dismissal. |
| Whether treaty precluded prosecution / required dismissal or acquittal | Treaty does not categorically defeat prosecution; scope governed by historic use/occupancy and may be regulated for conservation; facts must be resolved. | Treaty reserves broad hunting rights on any open/unclaimed land historically used (or even more broadly); prior court remarks had already established use, barring retrial (double jeopardy/preclusive effect). | Court rejected dismissal/acquittal: January 2010 remarks were not intended as binding final findings; on the record the court found (supported by evidence) Nez Perce did not historically use/occupy the kill area — treaty defense fails. |
| Proper jury/bench instructions re: treaty scope (Buchanan test vs broader rule) | Use Buchanan framework: open/unclaimed; ceded? if not, aboriginal hunting land requires historic actual use and occupancy over time; state may regulate for conservation. | Broader instruction: treaty covers any open/unclaimed land historically hunted (arguing occupancy requirement inappropriate for a mobile people), or even any open/unclaimed land. | Court applied Buchanan-style instruction; defendant conceded rights are limited to historically used land and the court found no historical use here, so any instructional variance would not have produced prejudice. |
Key Cases Cited
- State v. Garner, 253 Or App 64 (Or. Ct. App. 2012) (a trial that commences satisfies "brought to trial" under former ORS 135.747 even if it ends in mistrial)
- State v. Buchanan, 138 Wash. 2d 186 (Wash. 1999) (sets test for treaty hunting rights: open/unclaimed land; if off-ceded land, must prove aboriginal hunting grounds by historic use/occupation)
- Antoine v. Washington, 420 U.S. 194 (U.S. 1975) (states may impose nondiscriminatory conservation regulations on treaty hunting/fishing rights)
- Puyallup Tribe v. Dep’t of Game, 391 U.S. 392 (U.S. 1968) (federal treaty rights cannot be nullified by states; states may regulate for conservation under appropriate standards)
- State v. Glushko/Little, 351 Or 297 (Or. 2011) (method for computing delay under statutory speedy-trial review)
- State v. McGee, 255 Or App 460 (Or. Ct. App. 2013) (defendant is deemed to have applied for or consented to delay when motions require pretrial resolution)