State v. Coffee

P.2d Idaho, Plaintiff-Respondent, STATE COFFEE, (David) Defendant-

Dianne C. Appellant.

No. 12040.

Supreme Court of Idaho.

Nov. Walter,

Neil & O. Walter of Wilson Ferry, Bonners Echohawk, E. Boul- John der, Colo., defendant-appellant. for Wayne Atty. Kidwell, Gen., T. L. J. Boise, Jones, III, Gen., Sp. Atty. Asst. Day, Boundary Randall Atty. of Pros. W. County, Ferry, plaintiff-re- Bonners for spondent.

McFADDEN, Chief Justice. Defendant-appellant (David) Dianne C. charged by a criminal com- Coffee was counts; plaint deer (a) killing with two in out of violation of 36- season I.C. § killing a deer with the aid (b) in 36- light an artificial violation of I.C. § facts, Following stipulation as to the 1301. for a dismissal Coffee moved based and has an her claim that she an Indian aboriginal right hunt free from state regulation. trial denied the mo- The court dismiss, and was convicted tion to Coffee affirms. both counts. trial, following facts were Prior to stipulation in a executed agreed attorney attorney, for defendant’s Fund, Rights Bound- Native American Attorney, Prosecuting ary County Attorney defendant General. assistant Tribe, the Kootenai is a member of recog- tribe non-treaty, non-reservation government. nized 8, 1972,de- p. m. on about October At 8:50 deer killed two white-tail shot and fendant Farm property Howe private owned property Boundary County, in Idaho. taken located were where the deer # Drainage District Valley Boundary County, On October Idaho. closed hunting season deer area; two deer at the time the the deer were killed, had set and sun Pub.L. Boundary of October 18, 1974, рroperty Act of Idaho. On October 93-458, 88 Stat. 1383. County No. the United States was set aside Tribe of the Kootenai trust benefit hunt-leaders; supervised persons spotted and the aid of artificial these shot with religious in accordance with light. The control of the traditional mandates. stipulated Although defendant absolute, and individ- hunt-leaders was not offenses, moved constituting facts she necessity if so hunt time uals could moving, de- charges. to dismiss In so hunt, was After a tribal food demanded. that, Indian, she fendant contended as an tribe, among the thus shared members of aboriginal right an to hunt in the area had insuring that unable to hunt would those traditionally by her occupied tribe without only hunted tribe when receive foоd. The being game laws the by bound the State necessary game all was and used argued had Idaho. she that she Thus, Hunting sport was taken. for unknown. committed no crime. testimony, defendant In uncontroverted 18, 1973, July On trial to the court was for that she food when stated was magistrate held in the addition court. game The deer were killed. was the two stipulated facts, the court received persons among in her distributed ten to be testimony from the defendant from and needy persons and several other household expert Anthropology. in Kootenai Indian community. Defendant testified in the opinion, In its de- memorandum the court sport, has hunted for never she the and nied defendant’s motion to dismiss necеssity. today members con- for Tribal her The guilty found of the two counts. indispensi- tinue to consider appealed defendant then district the reasons. ble for economic and cultural court, opin- which issued its memorandum proceedings ion based on the record of was entered On magistrate court. The district and certain into between magistrate affirmed the decision of the Montana, in the at Hellgate, Indian tribes Appeal perfected court. was then to this Valley. rati- Root The was Bitter court. by the in executive session fied Senate undisputed proclaimed by Presi- following The evidence was March magistrate at established trial in the court. dent Buchanan on 1859. 12 Stаt. April negotiated The for the defendant is an enrolled member of The was 975. Stevens, by by government Idaho The Isaac Kootenai Tribe. Gov. Flathead, Kootenai, Upper Idaho as Pend frequently referred to headmen of the Kootenai, Ferry d’Oreille, “Kootenay” the Bonners of five tribes. one Several treaty, in- separate “Kootenay” signed re- historically and distinct tribes Michelle, Flint, Little cluding ferred to as The tribe Chief Kootenai Indians. Gun See, traditionally Apparent- Michelle, identified with Kootenai Paul and Moses. occupied represent the drainage system, ly claiming River those none of tip “Kootenay” of the Idaho most of what is now the northern were members portion separate Mon- tribe was Idaho and of northwestern occupancy represented treaty negotiations The Koo- tana. Idaho Nonetheless, relatively exclusive, signature. the land tenai was but other ceded the Koo- tribes were to hunt and fish on the Indians included allowed system, oc- drainage land tenai River the area without trouble. cupied by the Idaho Kootenai. occupied by area Kooten- Idaho primarily Subsequently, ai used was residence gained The tribe sustenance Commission considered subsistence. Indian Claims mainly hunting, aspects ownership of the fishing, although various digging Idaho berry picking, trapping and root Kootenai important. compensation tak- Tribe Band were also Deer were often Kootenai hunt- Indians of the v. United en for food and other uses. Tribal State of regulated Docket In an ing known 154. was individuals No. published among are included at 5 456 (1957), Ind.Cl.Comm. title. although

the Commission found parties were not Aboriginal on the no- title was founded treaty, title to the land had nonethe- that Indian and use of tion extinguished by less been the United States predated present prehistorically Hellgate with the ratification of the sovereign. that until demanded Justice The Commission Senate exigence recog- compelling some more was then that the tribe was entitled ruled nized, the should be to con- allowed compensation for the of the land value way his his trib- tinue life on traditional accepted later of 1859. Thus, al lands. agreement between the Kootenai camped just right more than remain ownership and settling the Government continue, at the land. compensation questions. 8 Ind.Cl.Comm. temporarily, way of the a life. To least dis- (1960). These will be decisions fishing inte- extent that or was The case was cussed in more detail later. way prior gral part of the life Indian’s of sep- for a with and later time consolidated man, coming to the of white it became arated a claim of Confederated from part a way of life allowed to contin- the Flathead Tribes of Salish Kootenai sovereign. ue establishment of the after band), Reservation different Kootenai (a part Thus, hunting fishing are rights at 8 discussed Ind.Cl.Comm. Pi- aboriginal In parcel title. to not relevant that Commission is Winslow, Packing oneer 159 Wash. Co. v. the instant case. held that 294 P. 557 the court same “by fish own reservation Indians is presented in The issue this case right they owned and in the title same present-day whether Indians have making of prior to the time of the them private from right hunt on free to Further, treaty.” provide treaties issue, regulation. of this disposing state hunting and of retention the Indians aborigi- we whether there was consider rights, on and off the reserva- fishing both hunt, right right nal sur- whether to fishing tion, indicating that if today terms, vives so what title rights рart aboriginal are a properly was whether defendant Coffee reserved may or be ceded pro- to exercising rights so as be existing by the Indians. regulation. tected from state prop- this attempts to refute Respondent THE ABORIGINAL RIGHT authority Tlingit of osition on States, F.2d concept is of title es- Indians v. aboriginal well Haida United In Tlingit, Ct.Cl. 130 tablished. of an award reversed of Claims Court discov right sovereignty of over “[T]he fishing exclusive of damages for the loss always subject to ered land was alia, “there holding, that rights, inter occupancy and of enjoyment of use and own- rights fishing no based living on the * * ex- A close ership the land of occupancy by Indi use and right of that reveals Tlingit amination as ‘Indiаn title.’ ans came to be known Al- foundation. lacks court’s conclusion ‘original title’ called sometimes have that “we court asserts though the ” Fox Tribe title.’ Sac and ‘aboriginal fish- previously concluded (Ct.Cl. F.2d exist,” cite failed did not ing rights 900, 88 S.Ct. 1967), cert. den. 389 U.S. Fur- proposition. support this authority to 220, 19 L.Ed.2d 217 been appears to have ther, that conclusion “navi- opinion that upon the court’s based opinions the sub- paucity find a We prop- waterways never been have gable fish hunt and rights ject of whether owners,” accepted doc- adjacent very early and the became erty “It fee title although the deci- reasoning would limit trine in this Court court’s thus occupied by Indians when taking of fish involving sion the lands to cases rate, vested navigable waterways. arrived became At the colonists discovering Eu- language sovereign is mere dicta since —first ropean compensation depends original and later the nation for loss of solely statuto- ánd the United States—a on whether there is a "clear the Indian tribes nev- ry compensa- occupancy in was directive creating recognized. right, tion,” That some- concludes ertheless compensa- good against right migratory fish times called title and is not a sovereign, all could statutory right. but the be terminated ble only sovereign act. Once the United that, We hold where established organized and the Constitu- use, aboriginal historical includes the adopted, tion these to Indian tribal to hunt and fish those where and. province land became the exclusive rights have passed not been title, recognized the federal law. by treaty otherwise, only right occupancy, ex- continue adhere to the members current only by tinguishable the United States.” tribe which aboriginally. held them Oneida Nation County right may State, regulated by Oneida, Y., N. but if a need for such conservation (1974). 39 L.Ed.2d 73 Tinno, shown the State. State v. 94 By far the ‍​​‌‌‌‌​​​​‌‌​​​​‌‌​‌‌‌‌​​​​​​​​​​​​‌​​‌​​​‌‌‌​​‌‍most usual method of termi- 759, Idaho (1972). 497 P.2d 1386 rights nating Indians In treaty.2 present case, In the the uncontroverted situations, and the Government testimony magistrate before the tended to Indian were negotiate tribes able to prove the existence of such a grounds reach agreement. common Idaho Kootenai Indians historical based on up gave Indians their land and in return patterns. use The next step is to deter- agreed specified States con- mine rights whether those extin- have been ditions, usually payment moneys pro- guished or in other way limited. vision nego- of services. The Indians could EXTINGUISHMENT OF THE KOO- up only parts tiate give those -of the TENAI ABORIGINAL HUNT- rights, they or those which desired ING RIGHT surrender, keep could such other areas they Thus, or rights as desired to retain. established, Once extinguish an normally treaties ment retained land for occu- rights of Indian lightly “cannot pancy, “reservation,” implied.” United often allowed States v. Fe Pac. Santa 339, 314 the Indian some form of and fish- Co., R. 248, U.S. 62 86 S.Ct. L.Ed. ing right.3 present- The relative (1941). 260 It is well established day Indians the various can be government, capac the United States states in its ity sovereign, treaty, as the determined construction of a can extinguish the In dian to their much the same as a contract construed historical land. See, g., Treaty Nations, Washington, See, g., 2. e. Antoine v. e. with the 420 Six 194, 33, 44; Treaty 944, 15, 95 U.S. 129 7 Stat. Between United 43 L.Ed.2d S.Ct. (1975) ; Indians, County Oneida Nez Indian v. Perce 12 Stat. Nation Oneida, Y., Treaty Qui-nai-ells, 661, 957; N. with 12 414 94 Stat. U.S. S.Ct. of 772, Oregon, (1974) 971; Treaty ; 39 L.Ed.2d with Indians of Middle 73 Tee-Hit-Ton 963; Treaty Yakimas, States, 272, v. United 12 12 with the 348 75 Stat. U.S. 313, 951; Walla-Wallas, Treaty (1955) ; 99 S.Ct. McConville, L.Ed. State v. with the 314 Stat. Treaty Flathead, 945; 12 65 12 Idaho 139 P.2d 485 Stat. (1943) ; Arthur, v. State 74 Idaho Stat. 975. ; (1953) Tinno, 261 P.2d 135 State v. 94 (1972). 497 P.2d 1386

910 See, dispute рrovided when ambiguity arises. made. Section of said act g., Washington, for allotments on lands to e. Antoine which v. title extinguished had been and is there- State L.Ed.2d Arthur, fore evidence view 261 P.2d 135 Government’s that the lands on which the allotments were had made been ceded the 1855 however, In case, the instant there no treaty. negotiated treaty; as counsel the de- circumstances, In these must con- asserts, we relatively fendant this case is date, sider March unique in that ceded most tribes ratified Here, however, their treaty. we acquired the time the defendant the Indi- cannot look to the Kootenai did or did what aboriginal rights involved lands cede or because reserve * * * here. Marсh On parties to the possesso- freed lands from the The Indians Claims Commission ry petitioners.” rights of 5 Ind.CI. question of whether the considered Comm,at 475-76. extinguished had the Indian analysis We have examined property of the Kootenai tribe agreement we are Commission system drainage Kootenai River its conclusion. or Band Indians of Kootenai Tribe State Idaho v. 5 Ind. Tee-Hit-Ton Indians United L.Ed. Cl.Comm. Supreme although concluded that Court Idaho Kootenai United States signatories treaty, aboriginal rights had Sen described the nature of not been power of ex- ate ratification constituted rights: extinguishment by tinguish those Congress of the tribe’s rights to the Ind.Cl.Comm. in- “The nature That conclusion was based on 474-477. be- various terest the belief Commission’s tween the Indians the and power, ex sovereign, States has the as to dependent on such interest are far from tinguish aboriginal title even absent a Indian inhabitants. novel as concerns our The Commission relied Lone is in all of It well settled that the States 553, Hitchcock, 23 S.Ct. 187 U.S. Wolf the the who inhabited the Union tribes 216, (1903), 299 and the Creek 47 L.Ed. such lands States held claim to 620, States, Nation 302 58 v. United U.S. man, the the of white coming lands after (1938), 482 and held: S.Ct. L.Ed. original termed under what is sometimes permission the Indian title or from defendant “The intention of the [United description occupy. That the whites to extinguish to States] specifically possession

by by means mere not treaty is the evidenced оwnership by recognized Congress. in fact their were lands included permitted to conquest they provided After area ceded. The also territory which portions of over territory occupy and required the Indians ‘sovereign- they previously had exercised set ceded to move to the reservation This is not ity,’ use that term. as to the of as we aside for them and ancestors right of tribe, amounts nego property but to members [Kootenai] grants sovereign occupancy which years several tiations extended over by third protects against intrusion giving them the area allotments occupancy right of parties but which now did claim their ances then fully such lands home, may thе allot terminated tral under section of be sovereign with- disposed by itself 1887, 24 February ment Stat. act obligation any legally out enforceable Apparently allotments were such

9H F.Supp. Bands compensate Tee-Hit-Ton v. United the Indians.” at 1 (1957). Ct.Cl. Indians 348 U.S. at 317. agree with We also See, McIntosh, (8 21 U.S. Johnson v. Claims that the Senate termi

Wheat.) L.Ed. 681 aboriginal nated 1859 with Hellgate treaty. ratification of the States v. Fe Pac. R.

In United Santa Co., by 86 L.Ed. was consented to on S.Ct. Senate power proclaimed by extin- March the President governmental crystalized: April 18, 1859, by guish signed was Indian title the Senate 1859. Because the decision manner, such “The method and time of treáty consent to the was made in exeсu political justi- extinguishment raise session, tive we are unable to find ex * ** done ciable issues. whether pression of the in rati Senate’s intentions by treaty, by sword, by purchase, by fying treaty. Nonetheless, we can in complete ad- the exercise dominion fer the intended effect from the ratifica occupancy, verse other- tion itself. wise, open inquiry justness its face, nothing On its a ratification does in the courts.” accept negotiat- than more the terms of the at 252. agreement; taking extinguish- ed no dealings government The scheme of apparent ment is the face ‍​​‌‌‌‌​​​​‌‌​​​​‌‌​‌‌‌‌​​​​​​​​​​​​‌​​‌​​​‌‌‌​​‌‍of a ratifica- as defined Indian title tion. Part the land ceded has rendered the Indian courts belong аccepted did not Senate “essentially a revocable signatories not theirs to privilege granted the United States.” give. If mere- the effect of Rights American Na- Indian Title: The Indians, ly accept from They Occupied tives Lands Have Since implied extinguishment then no could be Immemorial, Time 75 Col.L.Rev. govern- the ratification to establish invalidly mental in land ceded. disposition over the “Federal control However, has more ratification of terms, practical implied, in Indian lands acceptance. effect than mere by purchase or ‘extinguish’ govern apparent right of conquest, Indian’s title or ment intended the 1859 ratifica exclu- occupancy. power lodged pay money tion to a certain sum of as Congress, could even sively in the re obligations, and in return to sume other appropriate Indian title land arbitrarily lands, specified including the Kooten ceive authority unreviewable an exercise of drainage occupied by system the ai River 655, 660. by the courts.” 75 Col.L.Rev. the Indians Idaho Kootenai. Whether McIntosh, treaty power give supra; signing Tee- the had the See, Johnson v. land, States, supra; The away the is not relevant. United Indians v. Hit-Ton United land, power to take the Hitchcock, supra; Creek did have the States Lone Wolf land, receiving the States, it said it was supra; Shoshone and when Nation v. United taken. the land was States, 57 S. the effect was 299 U.S. Tribe v. United is Remembering that the Indian title (1937); United L.Ed. 360 Ct. granted by occupancy Nation, right revocable Creek States v. any In it is inferable Menomi (1935); L.Ed. 1331 intends to government that the dian nee Tribe v. United treaty. A take the land ceded L.Ed.2d 697 effectual, becomes Kabinto, treaty, when made F.2d 1087 any legislation. land much as River law of the 1972); & White (9th Cir. Uintah aboriginal the land was even if title to ratifying By Art. U.S.Const. terminated, title Unit- treaty which the of the terms ratifica- were not mentioned possession of the relevant took ed States main- into tion of Defendant land, put force of law the Senate right to hunt and has Thus, title tains survives taking of the land. relinquished never been the Kootenai. when extinguished' July con- expressed the treaty ratification disagree. Senate ratifi We The possession of the gressional intent take expressed cation of the its land.4 intent to the Indian title to the terminate Koo apparent that the It equally land described in ex taking. this recognize accept tenai pressed its intent to leave certain ofAct In the Indian Claims Commission treaty excepts The untouched. from ces 70a 25 U.S.C. § sion certain lands for reserved statutory compensation for provided tribes, signatory and also certain government lands from taken rights: other advan Idaho Kootenai took Indians. The taking “The exclusive fish all tage compensation when running through streams or border- filed its claim with the Indian Claims ing said is further secured to reservation fil 456. In Commission. 5 Ind.Cl.Comm. Indians; as taking said also the claim, ing that in ef places, fish at all usual and accustomed fect, taking admitted the of their lands in common with citizens Territo- of the States; necessary this is the ry, and erecting temporary buildings implication in that enti could curing; together privilege compensation tled unless the lands berries, hunting, gathering roots and appear had been taken. would pasturing their and cattle horses Koo of the that the disputed tenai taking, open never as all and unclaimed land.” 12 Stat. tar gumentation ap before the Commission 975, 976. pears question to deal with the of when the language relevant is that taken, land was and not whether had portion granting a continuing to hunt extinguished. been 5 Ind.Cl.Comm. upon “open land.” It in- unclaimed action, then, In that 474-477. even ferable from specific the mention of the Kootenai denied that the United had reservation, open and extinguished to hunt title to the unclaimed that the Senate intended lands; take the to hunt on other

We next consider the terms and extent specific infer- exception gives rise to an the termination. Defendant contends fear, underlying Proceedings 4. An one of examination of the Indians was Official Flathead, assumed cession of the seemed Council held with the Koot- enay throughout Upper boundaries of the council. Pend O’relle Indians com- mencing ending July 16, never discussed. the tribal lands was 7 and prior proceedings recognizes S.tevens, Supt. in a I. those Isaac Gov. & Af- agents part government (Nat’l fairs, Washington Ty. Archives), on of decision negotia- lands; certain transmitted to the on Indian to take Commissioner actually secure than in did more Affairs a letter dated tion little (Nat’l approval compensation Archives), the decision reveals paid was, effect, prior areas of two to and determine which take the land made negotiations Ratifi- to aside as reservation. initiation of at Hell- would set putting council, gate. had the effect all cation of the discussion centers governmental decision law into a No the force of location of reservation. discus- .the long appears be- made been sion have occurred as which whether July, expressed by council. would be ceded. mood fore The matter of subject all its that the general legal “expressio land, extinguishing maxim hunt- unius est claimed while other See, ing rights. exclusio alterius.” Noble v. Glenn’s 914 offenses, viving aboriginal private hunt on

this time at the of Ida- not, subject if she was to the land.7 whether game

ho State laws. regulate of a state to hunting upheld in general has often been TO HUNT DEFENDANT’S RIGHT police as a valid PRI- exercise of the state’s UPON UNREGULATED power pursuit objective pre of LAND VATE serving the state’s natural resources. Geer meaning ‍​​‌‌‌‌​​​​‌‌​​​​‌‌​‌‌‌‌​​​​​​​​​​​​‌​​‌​​​‌‌‌​​‌‍This of court decided Connecticut, 600, 519, v. 16 161 U.S. S.Ct. “open to hunt on and unclaimed 40 Fountain (1896); L.Ed. 793 Foster Arthur, 251, land” State 74 Idaho 261 v. 1, Company Haydel, v. Packaging 278 U.S. (1953): P.2d 135 1, 49 (1928); S.Ct. 73 L.Ed. 147 Toomer apparent “It will at once become Witsell, 385, 1156, v. 334 68 U.S. S.Ct. 92 land’, meaning ‘open unclaimed of L.Ed. (1948); 1460 Takahashi Fish and v. employed treaty, in the more becomes Commission, 410, Game 334 U.S. 68 S.Ct. meaningful. include was intended to 1138, 92 L.Ed. the Fed Once and embrace lands as set- such were not eral extinguished Government has the abo tled the whites under occupied by riginal Indian, title of the and absent possessory rights patent or otherwise treaty provision contrary, the state appropriated private ownership may properly regulate hunting activi ** *.” 74 Idaho 261 P.2d See, ties of the Organized Indian.8 Vil 135, 141.6 lage 60, Egan, Kake v. 369 U.S. 82 S.Ct. case, hunting In that the defendant was 562, 7 L.Ed.2d Mescalero open federal land which and un- Apache Jones, Tribe v. 411 U.S. 93 S. claimed, this held he could Ct. 36 L.Ed.2d 114 (1973). Here, subjected regulation. to State Had defendant been however, hunting on she was defendant admitted open land, and unclaimed private is motion to dis Land which might miss justified, depending have been privately open owned is not unclaimed. on whether the State could Thus, even show need to though the defendant’s re- tribe regulate Tinno, hunting. See, State v. tained a open to hunt on and un- supra. However, as she was claimed defendant did not have a sur- dealing Arthur, able from most cases 6. In v. State we examined the lan- guage of Indians to hunt and fish in a manner used Gov. Stevens and various contrary Washing to State Antoine v. law. headmen at council ton, supra; Puyallup Dept. understanding Tribe v. determine extant at Game, negotiation meaning “open 20 L.Ed. 391 U.S. 88 S.Ct. as to the (1968); Dept. Puyallup ease, 2d v. Game unclaimed land.” instant sim- .the Tribe, expressions governmental L.Ed.2d ilar intent ; Washington, (1973) meaning Tulee v. 315 U.S. to the these words found (1942) ; speech 86 L.Ed. S.Ct. Gov. Stevens’ Indians Winans, Hellgate, United States v. Proceed- contained Official (1905) ; ings Council, supra, 49 L.Ed. 1089 State “In n. 4: Tinno, Arthur, supra; supra; your having providing State besides McConville, supra. your homes, you State v. will have of land for .tract you privilege going land on to the Quigley, State v. 8.The below relied on courts get and berries and to have sold to roots (Wash.1958), P.2d 52 Wash.2d actually game except kill is where the land Although support proposition. occupied by Pro- a white settler.” Official terse, and reason under is somewhat ceedings, Transcribed National Archives clear, lying it seem to stand does p. Copy, 5. impose may proposition a state for the game regulations present question fish does not case .the private killing game regula- may impose land which deer on when a state has surviving aborig- to that exercising because tions on Indians extinguished. distinguish- hunt, been thus inal and is aborigi- agree majority I also with game subject to state private she was in- only possessory nal title includes laws. by but where established terest defend- properly denied The trial court right hunt and fish. use, historical Affirmed. to dismiss. ant’s motion Finally, agree majority that case with the I law establishes that the United States Gov- sovereign BAKES, JJ„ capacity as the ernment in its SHEPARD Ret., extinguish right to their Judge, concur. can the Indians’ SCOGGIN, District by sover- by

historical land either DONALDSON, (dissenting). eign treaty. act absent a Justice a criminal charged in appellant disagree majority’s I with the conclusion season killing a deer out complaint case, extinguishment place in this took killing a I.C. 36-1403 in violation of established, extinguish- § however. Oncе light con- an artificial the aid of deer with lightly ment be of Indian “cannot stipulated trary 36-1301. She to I.C. implied.” Santa Fe § United States v. Pac. the com- to dismiss charges but moved Co., R. 86 L.Ed. enrolled grounds that as an plaint The Idaho Kootenai were not she had Idaho Kootenai member of the parties Hellgate Treaty. As the ma- free area hunt in the jority opinion acknowledges, could not stipu- parties regulation. The from state treaty. The therefore be affected the violations that the land on which lated result, majority how- reaches identical the territo- allegedly were within occurred ever, maintaining that ratification ab- rial of the Idaho Kootenai’s boundaries Hellgate Treaty terminated whatever Nevertheless, hunting grounds. original rights the Idaho Kootenai had in land. majority the district court’s affirmed quote majority, To dis- motion to appellant’s decision denying “Remembering that the Indian title is miss. a revocable occupancy the conclu Being agree with unable to granted by it is infer- respectfully by majority, I sion reached any able in gov- presented issue The critical dissent. ernment intends to take the land ceded an extin there was case whether treaty.” aborigi guishment of the Idaho Kootenai’s It is true that the had the agree question. nal I title to the lands power inherent sovereign take the establishes majority that case law treaty. Kootenai’s land absent As the concept aboriginal title. Once the United elected enter said Sac United States Court of Claims however, into a formal treaty, whether ex- Fox 383 F.2d Tribe v. United & tinguishment occurred has to be deter- denied, cert. Ct.Cl. mined treaty. the terms of the To hold 19 L.Ed.2d process otherwise would render the (1967): nugatory. Since the Idaho Kootenai were discov- sovereignty over “[T]he parties Hellgate Treaty, there subject always ered land was extinguishment could be no of their enjoyment occupancy of use and under Case law establishes that living on the property not a right, but is a by Indi- occupancy This of use and right of occupancy sovеreign which the grants protects against ‘Indian title.’ ans came to be known as intrusion parties. third title’ or ‘original It is sometimes called ” may ‘aboriginal legally terminated en- title.’ without Arthur, v. preme observed Court State compensate the In obligation forceable to cert. 251, (1953), 135 261 P.2d 74 Idaho United Tee-Hit-Ton Indians v. dians. 627, 937, L.Ed. denied, 98 347 74 S.Ct. 99 L.Ed. U.S. 348 U.S. 75 S.Ct. right to hunt (1954), if an Indian’s In extinguish (1955). But in order to certain times and fish were to act, sovereign limited by sovereign dian title all other citizens year in common with Extinguishment affirmatively so. must do right recognized “his otherwise ancient implied.” In this case “lightly cannot be extinguished would treaty and never the rati only alleged sovereign act was practical purposes extinguished.” for all to purport fication of a that did rights that were That case involved Indian affect the Idaho Kootenai. Since the Unit protected by a formal the Idaho affect did purport ap ed But identical considerations Kootenai, States. affect its could not ratification pro ply aboriginal rights are not that the Idaho Kootenai. treaty. Only formal tected ab retained their The Idaho Kootenai extinguish Indi authority has the States rights in to after ratification original rights rec rights. Whether Indian Hellgate Treaty until the tribe’s statute, treaty, ognized by or other formal possessory extinguished when interest was consequence government action of no the Indian Claims awarded respect. origin of all Indian compensation for the loss Idaho Kootenai aboriginal rights is the same—the of their Kootenai Tribe v. United only by sovereign can act. be terminated (1957). Ind.Cl.Comm. 456 complaint charging appel- The criminal however, important note, there killing of season and lant with a deer out concerning Idaho were no statements killing an artificial with the aid of deer rights in hunting fishing Kootenai’s light As an should have been dismissed. rights the Commission’s decision. Those Idaho enrolled member of the extinguished. were therefore not In Unit appellant aboriginal right hunt had an Winans, ed States v. 198 U.S. within the territorial boundaries S.Ct. 49 L.Ed. 1089 aboriginal Kootenai’s Supreme United took the States Court grounds. be affected That could not grant view treaties were “not by I.C. 36-1403and I.C. 36-1301. Indians, § § rights grant rights but them, reservation of those not —a legitimate in recognizes This dissent granted.” although It follows that the ef conserving natural terest its state fect of the Indian Claims Commission’sde resources, longer particularly in no areas extinguish cision was to the Kootenai’s occupancy. subject to exclusive possession, ‍​​‌‌‌‌​​​​‌‌​​​​‌‌​‌‌‌‌​​​​​​​​​​​​‌​​‌​​​‌‌‌​​‌‍other their prompted the Similar concerns United rights including to hunt were not Supreme limited to allow Court affected. regulation state of off-reservation regu fishing rights It is well where the established that the exclusive “in extinguish the interest of conserva lations based (cid:127) tion, appro provided regulаtion meets occupancy belongs to the priate and does not discriminate Nation v. standards States. Oneida Indian * * Puyallup County Oneida, against the Indians U.S. Game, Tribe Dept. v. (1974); 39 L.Ed.2d 73 See L.Ed.2d 689 Co., v. Santa Fe S.Ct. supra. reg- Pac. R. State Burnett, Hunting, Fishing also “Indian ulations which have the of extin- effect Rights: Trapping The Record guishing aboriginal are inval- Controversy,” id supremacy under 7 Id.L.R. clause of the Unit- (9th Washington, ed States v. 520 F.2d 676 As Constitution. the Idaho Su- 9x7 denied, 1975), cert. Cir. 556 P.2d 1197 State 47 L.Ed.2d 97 Mag Harry Colleen B. F. MAGNUSON and Tinno, nuson, wife, Plaintiff-Respondents, 497 P.2d 1386 his accepted this stan (1972), the Idaho Court in an dard off-reservation case and COMMISSION, TAX IDAHO STATE required “clearly [prove] regu the state to Defendant-Appellant. fishing lation of the treaty Indians’ No. 12055. question nеcessary preservation for Supreme Court of Idaho. fishery.” equally standard is 1, 1976. Dec. applicable hunting rights.

Although present case does not in- treaty protected rights

volve I believe the adopted by

standards the Court State v.

Tinno, supra, appropriate be an means preservation

of assuring species

while avoiding extinguishment of the Koo- they

tenai Indians’ right to hunt which

have held since times. It is also

a standard now familiar to the

state, a already standard which must

inmeet cases.

Statutes are presumptively un- valid Tinno,

der standard. supra. State v. present

In the case the state has failed to

present hunting by evidence presented a threat to white-tail

deer or that question the statutes in

“in way necessary or even useful for

the conservation of deer.” Antoine v.

Washington,

L.Ed.2d 129 pro- Evidence was

duced to presently show there are

fewer than 75 Kootenai Indians in Idaho.

Their incomes generally average below ‍​​‌‌‌‌​​​​‌‌​​​​‌‌​‌‌‌‌​​​​​​​​​​​​‌​​‌​​​‌‌‌​​‌‍is often provide essential to

adequate diet present In them. appellant

case testified she shot the deer to

provide food for a number people in her Tinno,

household. supra, State v.

Idaho at 497 P.2d at the Court

recognized that “Indians have subsistence

and cultural interests in and fish-

ing that are deeply rooted more than the

recreational by sports- interests asserted

men.” showing Absent a that subsistence

hunting by so few would be a threat

preservation deer, of white-tail the statutes question, they purport insofar as to af-

fect the Idaho are invalid. else.5 notes ence that contains compensation “payment any Thus, the claim is right to hunt not reserved it However, their lands.” it is to said While by taken the United States. important is certain Indians have abandoned recognize that the equаlly that some “land,” remaining right all to the hunting right in- claims of does The clear survive. in this approved not clear “land” means language adopted tent of the what right the Senate is to leave the to hunt context. untouched; open unclaimed Normally, “land” means unextinguished remains and sur- property right things phys all and includes vives to the present-day benefit of Idaho earth, soil, trees, upon ical such Kootenai. Caldwell, grass. Reynard City This result was also reflected the Koo- However, Idaho P.2d 292 tenai claim before the Indian Claims inappropriate meanings these here. Initially, the Com- general in the The Indians held no interest rendered finding gov- mission that the sense normally associated with the use ernment had extinguished Kootenai the word “land.” What did own was land; interlocutory opinion was was revocable which August 9, filed 5 Ind.Cl.Comm. government. at the will of the In the con judgment but no was entered. Before settlement, text of “lands” the Commission adjudication further by the Commission as means that which was in the discussed to the value of the a settlement was claim and the Commission’s decision: reached between the Kootenai and the land as government taken United States. That settlement was re- treaty ratification. As we have noted ear accepted Commission, viewed and by the 8 lier, rights except terminated all Ind.Cl.Comm. and judgment en- specifically Thus, those excluded. the set tered. prohibits tlement the Indians from claim The effect of the ing any settlement was that the hunting right except in the land gave up any right any open further to hunt on and unclaimed against claim government, in return for payment $425,000.00: conclude, then, We the ab “Entry judgment of final in said amount original right occupy the Kootenai River shall finally dispose rights, of all claims drainage system once held the Idaho petitioner demands has assert- extinguished Kootenai was in 1858 when ed, asserted, or could have respect with lands, United States took those under subject to the claim, matter of this the terms Treaty Hellgate. petitioner shall be thereby barred extinguishment extent of the was defined asserting any suсh right, claim or de- Congressional accordance intent against mand any defendant in future the terms of the action.” signatory tribes, were left a The tribe thus declared as satisfied open hunt and unclaimed land. claim of respect “with subject We next look to determine whether de matter of this claim.” The Commission in fendant properly exercising Coffee was universally recognized 5. “It is a Ferry Bank, Ltd., rule of P.2d that, construction where a constitution wherein the doctrine is discussed. specifies things, designa application expressio statute certain Consistent with the things tion of Noble, such excludes all others.” unius set forth deem that “con- we State, good discretion,” Peck v. 63 Idaho 120 P.2d 820 sonant with reason (1941) ; Hollar, Poston v. save 1859 ratification should be read to principle expressed open P.2d to hunt on and un-

Case Details

Case Name: State v. Coffee

Court Name: Idaho Supreme Court

Date Published: Nov 23, 1976

Citation: 556 P.2d 1185

Docket Number: 12040

Court Abbreviation: Idaho