No. 99-608
lX THE SllPREZlE COC'RT OF THE STATE OF SIONTANA
STATE OF h10X-l'AS,41
Plaintisf and Respondent.
V
SANDR.4 WHITE SHOOK,
Defendant and Appellant.
APPEAI. FROM: District Court of the Twentieth Judicial District,
In and for the County of Sanders,
The Honorable C. B. McNeil, Judgc presiding.
COUNSEL. OF RECORD:
For Appellant:
Toni D. Tobin; Tobirl Law Office, Winner, South Dakota
For Respondent:
Hon. ithke LleGrath, Attorney General, Sarah .4. Bond,
Assrstant Attorney General, Helena, Montana
Robert Z n n m e m ~ n Sanders County Attorney, Thon~pson
. Falls
Montana
For Amicus Curiae:
John B. Carterl 1)arriel F. Decker, Tribal Legal Departmentl
Confederated Salisll and Kootenai Tribes, Pablo, Montana
(for Confederated Salish and Kootenai Tribes)
Maylinn Smith, Indian Law Clinic, University of hlontana,
Missoula, Montana (for Montana-Wyoming Tribal Judges Association)
Submitted on Briefs: October 4, 2001
P Clerk
Justice James C.Nelson dclivered the Opinion of the Court.
.)iFpciiant Sai:dra White Shook (Shook) appea!s an order of the 'T\veiitieth Judicial
District Court: Sanders Countyl denying her motion to dismiss the charge against her end
tipholding the Montana Fish, Wildlife and Parks Commission (Commission) regulation
prollib~ting
non-tribal members fro111hunting big game on all Indtan resel-vat~ons Montana.
m
We affirm.
1
'2 We address the following issues 011 appeal:
73 1. Did the District Court properly conclude that the state's big game hunting c l o s ~ ~ r e
to nort-tribal ntembers on Ind~an resenations does not violate constitutional guarantees of
equal protection?
74 2. Did the District Court properly conclude that the state's big game hunting closure
to non-tribal members on Indian reservations is not an unlawful exercise of the powers of the
Commission?
I. FACTU.4k AKD PROCEDURAL BACKGROUXD
75 On or about Wovember 16, 1997, Shook shot and killed a whitetail buck on private
property within the exterior boundaries of the Flathead Indian Reservation. Under
Commission hunting regulations, blg game hunting privileges on Indian Reservations are
limited to tribal members only, thereby closing the hunting season to non-tribal members.
Shoo!, is not a tribal member. Further, Shook dtd not own the pnvate property where she
huntedt nor was the property owned by a tribal member. Shook was charged with hunting
~vithin closed area in violation of 5 87-1-304, MCA, with the penalty provided in 3 87- 1-
a
102, MCA.
*d6 Shook pleaded guiity injustice court. However, pursuant to $ 46-12-203(3). MCA,
she reserved her right to a review of the advcrsc determination of'hcr initial rnotioa lo
dismiss. Shook rhcn appealed to the District Court, asserting in her renewed motion to
dismiss that the closure to non-triba! members was invalid for several reasons. The parties
then stipulated to facts sufficient to establish the offense charged.
77 Based on the stipulated facts, the District Court addressed Shook's motion to dismiss
and concluded that the regulatioil limiting big game hunting on reservations to tribal
members did not violate the Montana Constitution and was a valid exercise of the powers of
the Commission. Shook subsequently pleaded guilty, admitting in open court to killing a
whitetail deer on private property within the Flathead Reservation that she did not own, and
admitting to knowing that the area was closed under Commission regulations. Shook was
sentenced and appealed the District Court's ruling.
78 After Shook filed her notice of appeall Shook and the State stipulated to a motion to
vacate the appeal in this Coui-t in order to allow for possible resentencing by the District
Court. However, the District Court declined to resentence in an order dated .March 12,2001.
As a result, Shook then proceeded with this appeal. We allowed the Confederated Salish and
Kootenai Tribes (the Tribes) and the Montana-\it7>rorning
Tribal Judges Association to submit
anzici briefs.
11. STANDARD OF REVIEW
9 In this case, the District Court's order denying Shook's motion to dismiss is based
entirely on conclusions of law regarding the legality of the state's big game hunting
3
prohibition for non-tribal members on land within the exterior boundaries of lndian
reservations in the stale. Accordingly, \we review the District Court's conclusions of law lo
determine whether those conclusions are correct. Zenlpel v. Lhirzsatred Eq~loye~*.?'
Fotzd
(199?), 282 Mont. 424.428: 938 P.2d 658,661. Further, we will affirm the District Court's
ruling if the court reached the corrcct result for the birong reason. State v. P~zvker,
1998 MT
h , y 20,287 Mont. \ 5 1 , 7 20.953 P.2d692,T 20
710 1. Did the District Court properly conclude that the state's big game
hunting ctosure to non-tribal members on Indian reservations does not
violate constitutional guarantees of equal protection?
:Ill The 1997 Cornmission regulation at issue here reads: "Big game hunting pribileges
on Indian Reservations are limited to tribal members only." While a copy of the regulation
at issue was not entered into the trial court record by either party, the parties stipulated to this
language in the District Court proceedings. I This regulation was promulgated pursuant to
5 87-1-304(l)(a)(i), MCA, which reads: "The comnlission may. . . lix seasons, bag limits,
possession limits, and season limits." As mentioned, Shook was prosecuted for hunting
during a closed season in violation of 5 87-1-304, MCA.
:We note here that the corresponding 2002 regulation is substantially similar.
Under the 2002 "Big Game Hunting Regulations, Preparing for Your Hunt, Closed
Areas" the corresponding regulation reads:
Indian Resetvations are limited to Tribal members only for big ganie hunting
privileges unless otherwise provided for by agreements between the State of
Montana and a Tribal Gotemnient.
"12 bhooh first asserts that the state's brg game hunttng closure to non-tr~bal
members on
reservations is an unconstitutional violation of equal protccrion because it distinguishes
betbteen tribal members and non-tribal members on the basis of race. The State and the
Tribe.; counter that laus that distinguish bctween persons based on tribal membership have
long been held constitutional under equal protection rcquircments becausc the distinction is
political rather than racial. The District Court agreed with the State and held that tribal
membership was a kalid political classification.
713 We agree with the State, with the Tribes, and with the District Couit. The United
States Supreme Court has already explicitly considered whether laws that distinguish based
on tribal membership >iolate equal protection in hfortotl v. Muncuri (1974), 417 U.S. 535,
93 S.Ct. 2474,4l L.Ed.2d 290. ln that case, the Court addressed Bureau of Indian Affairs
employment preferences for Indians and held that the preferences u ere not unconstitutional
classifications. The Court stated:
Literally every piece of legislation dealing with Indian tribes and reservations
. . . single out for special treatment a constituency of tribal Indians living on
or near reservations. If these laws; derived from historical relationships and
explicitly designed to help only Indians, were deemed invidious racial
discrimination, an entire Title of the United States Code (25 U.S.C.) would be
effectively erased and the solemn commitment of the Government toward the
Indians would be jeopardized.
. . . The preference is not directed towards a "racial" group consisting of
"Indians"; instead, it applies only to members of "federally recognized" tribes.
This operates to exclude many individuals who are racially to be classified as
"Indiails." In this sense, the preference is political rather than racial in nature.
,\forruiz, 417 U.S. at 552-54, 94 S,Gt. at 2483-85. The Court went on to hold that laws that
afford Indians special treatment are constitutioaal as long as those laws can bc tied rationally
to the fulfillment of the unique federal obligation toward Indians. .Llononl 41 7 U.S. 555,
at
04 S.Ct, at 2385. See also United Stare.. v. Antelope (1977), 430 C.S. 641; 647, 97 S.Ct.
1-395, 1399, 51 L.Ed.2d 701 (federal criminal code applicable in Indian country docs not
.
iiolate equal protection).
.
7/14 The State of Montana is required to follow this federal precedent by thc express terms
of both our own Constitution and the federal enabling act establishing Montana as a state.
Specifically, following the Preamble to the Montana Constltuhon, Article I, the Compact
With the United States, requires that the State ab~de "'the agreement and declarat~ol~
by that
all lands oaned or held by any Indian or Indian tribes shall remain under thc absolute
jurisdiction and control of the congress of the United States." See also Act of Fcb. 22,1889,
25 Stat. 676. Based on this requirement, we have previously held that Indtan treaties are
"regarded as a part of the law of the state as much as the state's own laws and Constitution[,]
[are] effective and binding on [the] state legis!ature[] . . . [and are] superior to the reserved
State v. klcC1ur.e (1954), 127 Mont. 534,
powers of the state, including the police po~~ver.''
530-401268 P.2d 629, 63 1. See also Stnie I>. Stasso ( 1 977), 172 blont. 242, 246, 563 P.2d
562, 564 (treaty provisions "must be considered as a reservation by the Indians, rather than
a grant by the federal government").
rj 15 Consequently, federal indian law regarding the rights of Indians is binding on the
state. Therefore, the state equal protection guarantee under Article 11, Section 4, must allow
6
for state class~fications IC those
based on trtbal n ~ c m b e ~ s h ~ p class~ficatrons ratlonail! be
can
tied to the hlfiilrnexi of the unique federal, and consequent state. obligation toward Indians.
Cj' Zernpel, 282 Mont. at 430-33, ' 3 P,2d at 662-64 (failure of statc workers' compensation
98
fund to coler workers under tribal jurisdiction does not violate equal protection) Indecd,
our o n u Constitution makes a distinction regarding Indians in Article X. Section l(2) ("The
state recognizes the distinct and unique cultural heritage of the American Indians and is
committed in its educational goals to the preservation of their cultural integrity.").
'16 Therefore, we need only address whether the state regulation that prohibits non-tribal
rnembers from hunting big game on Indian reservations is rationally tied to the fulfillmcnt
of the unique obligation touard Indians. We hold that it is. There are selcn Indian
reservations in Montana each established by treaty and agreements with the federal
government. The majority of the treaties establishing the reservations reserve some type of
hunting or fishing rights to the respective tribes. See, e.g., Treaty with the Flatheads, Etc.
of July 16, 1855? 12 Stat. 975 (commonly called the Hellgate Treaty). At the same time, we
have a!ready held that the state can regulate the hunting activities of non-tribal members on
reservations nnless precluded by an act of Congress or tribal self-governance matters. State
ex r-el. Nepstnd v. 1)ulrielson (1967), 149 Mont, 438, 443, 427 P.2d 689, 692. See also
States (1981), 450 U.S. 544,564, 101 S.Ct. 1245, 1258,67 L.Ed.2d 493.
.Wontuna v. Cii~ited
117 Accordingly, under Article I, the State, and in this case the Commission, has a duty
to regulate hunting by non-tribal members in a way that recognizes the Indian hunting
privileges protected by federal law. The regulation at issue here deals with the state's
7
obligation by simply prohibiting hunting by non-tribal members on reservations. 'This is an
rational means to prcserve wild!ife populations for hunting by Indians. Therefore,
cnti~eiy
the regulation is rationally related to the federal; and consequent state, obligation to recognize
tribal hunt~ng
privileges.
718 Despite the stra~ghtforwardapproach of the regulat~on,Shook asserts that the
regulation is arbitrary because no studies have been done to show if big game wildlife
populations on the reservations are over hunted by tribal members. Shook further asserts that
conservation purposes could be accomplished by other legitimate means. While there may
be other means to conserve the big game wildlife, we simply disagree this invalidates the
regulation. When a law is assessed for a rational basis, exact precision or efficiellcy is not
necessary. See Buirlwiiz v. Fish & Gai?zeComrn 'n (1978), 436 U.S. 371,390,98 S.Ct. 1852,
1864, 56 L.Ed.2d 354 ("That [Montana] might have furthered its underlying purpose more
artfully, more directly. or more completely, does not warrant a conclusion that the method
it chose is unconstitutional."); McClanatlzarz v. Si~1~t11(1980), Mont. 56,67-68,606 P.2d
I86
507, 513. .As already stated, the regulation ~t issue here is rationa!!y re!ated to its objective
and is therefore constitt~tionally
permissible.
*19 In addition, we agree with the State that the District GOLLI-t
properly denied Shook's
request for an ev~dentiary
heanng regard~ng argument that the regulation violated equal
her
protection. Such a hearing *as not necessary to decide the issues of law presented by Shook
to the trial court and this Court. Further, although Shook alleges in passing that the
regulation is 11ot enforceduniformly across the reservations, Shook did not properly preserve
X
this issue for appeal. The general rule is that issues not raised before the trial court and new
legal theories are not considered by this Co~rrt appeal because it is unfair to fault thc trial
on
court on an issue it was never given an opportunity to consider. Unified iildus., inc. v.
h s l e y , 1998 bf'r 135.li 15,280 Mont. 2 5 5 , l 15, 961 P.2d 100,q 15.
720 Finally, we note that while we agree with the r ~ m i c ~ r s
Montana-Wyoming Tribal
Judges Association that the treaties and agreements involving the seven reservations in
Montana are each unique, we do not agree that this prevents the state from designing a big
game hunting regulation regarding Indian reservations that applies statewide. Indeed, the
reg~lationat Issue scrcies to assure that big game populations on all the resenrations are
preserved. See also 2002 Big Game Hunting Regulations, Preparing for Your Hunt, Closed
Areas (regulation provides for agreements specific to each tribe).
721 2. Did the District Court properly conclude that the state's big game
hunting closure to non-tribal members on Indian reseriations is not an
unlawful exercise of the powers of the Commission?
722 Shook next asserts that the regulation is an unauthorized exercise of regulatory pouer
by the Commiss!on because there is no statute directly authorizing the rcgulatlon and because
there is no corresponding legislative h~storyregarding tribal hunting issues or mildlife
consen ation on the resenations. Conscquentlq, Shook argues that the rcgulation exceeds
the scope of 4 87-1-304(1)(a), MCA. Shook also asserts that the regulation contradicts state
law requiring consent of the owner to close their land to hunting. The State and the Tribes
assert that the Commission had proper authority to promulgate the regulation and that the
Commission was required to recognize the Indian rights protected by federal law in designing
9
its regulations. Thc State furihcr asserts that the consent laws regarding wildlife rctugcs are
not at issue in this case and that closed seasons apply 1-cgardlcss of land ownership.
7273 The District Court held that regulating hunting seasons was within the scope of the
Conitnissroli, that the Commlsston regulation docs not create a rcfuge, that Shook did not
hunt on her obn land and therefore could not ralsc the issue of the consent la-vcs. and that
legislative intent expressing that Commission regulations must recognize federal law was
unnecessary. Further, the District Court stated that 18 U.S.C. Cj 1165, gave the Tribes
exclusive authority to regulate hunting on the reservation.
12.1. We agree with the District Court, with the exception of its discussion of 18 U.S.C.
9 1165 as discussed below.
rj25 Under $ 87-1-301(1)(a), .VCA, the Commission is charged with setting "policies for
the protection, preservation, and propagation of the wildlife . . . of the state and for the
fulfillment of all other responsibilities of the depaihnent as provided by law." See also $ 87-
1-301(l)(b), MCA. In fulfilling this directive, the Comnlission must promulgate regulations
that are in accordance with general requirements of state law. As mentioned above, Indian
treaties are effectively a binding part of state lahv. Indeed, we have previously held that the
state is required to recognize Indian rights despite the fact that those rights are not
specifically mentioned. Stale ex ?,el. Gr-eelJ v. Cor?fideraterl Salislz & Kootenai Tribes
j1085), 219 Mont. 76, 95, 712 P.2d 754, 765-66. In Greefy, we stated:
We recognize that the Water C?seAct of Montana does not explicitly state that
the Water Cout-t shall apply federal law in adjudicating Indian resemed rights.
However, we conclude that is not fatal to the adequacy of the Act on its face.
iVe hold that state courts are required to follotv federal law with regard to
those water rights.
Greeiy, 219 Mont. at 05, 712 P.2d at '765-66.
"?O
tiA Because of the suprewicy of federal law on matters related to Indian treaties: v:e have
also held that state statutes do not violate equa! protectiors in excluding Indians, even when
the exclusion is not specifically mentioned. Zenzpel, 282 Mont. at 430, 938 P.2d at 662
(plaintiff was excluded from state Uninsured Employer's Fund coverage by controlling
principles of federal law regarding state jurisdiction over Indian reservations, rather than by
the statutory definition itself).
1/27 Therefore, contrary to Shook's assertions, it is not necessary that rj 87-1-301, MCA,
or 5 87-1 -304, MCA, specifically mention India11 hunting rights in order for the Commission
to have proper authority to promulgate a regulation that recognizes those rights under state
law. Similarly, it is not ncczssary that tbc Co~nnlissionbe directed 5 !cgistative intent,
5
studies, or committee minutes specific to the issue in order to recognize Indian hunting
rights. Accordingly, we hold that the District Court properly concluded that the Coinmission
did not exceed its powers in promulgating the regulation closing big game hunting pursuant
to its directive to set seasons under $ 87-1-304(l)(a), MCA, or rj 87-1-301(1). MCA.
728 We note in making this holding that in addition to the fact that the Corslniissio~n
must
recognize Indian hunting privileges when promulgating regulations: the Commission must
also take into account $ 87-1-228, MCA, ~vhich
explicitly recognizes the tribal hunting rights
relative to the Flathead Reservation. Further, the Commission must also take into account
litigation in Montana's federal District Court regarding the issue ofjririsdiction to regulate
hunting on thc Flathead Reservation. See Gji?,'>lr'erczted Scrlish & Koorenui Tribes v. ,%ate
( I 990), 750 F.Supp. 446, and subsequent Order in CV 90-49-M-CCL (May 8, 1991). This
litigation specifically recognized that the issue of jurisdiction to regulate hunting on
reservations was extremely complex and best left to resolution by agreement between the
State and the Tribe. See Order in CV 90-49-M-CCL (May 8,1991) (staying the proceedings
for the duration of the settlement agreement between the State and the Tribe which is still in
effect). Therefore, in the case of the Flathead Reservation, the regulation at issue here is
specifically required by that agreement.
729 in support of her argument, Shook cites cases in which we have found ail agency
in~properlyexceeded the scope of an authorizing statute. However, those eases are all
distinguishable simply because none involve additional laws that the agency was required to
acknowledge in designing the regulation. See; e.g., Safeway, Inc. v. h4ontalia Petroleu~?~
Release CofnpensationBd. (1997), 281 Mont. 189,931 P.2d 1327 (administrative rule that
required that tank be in place when tank release was discovered, added additional
requirements to statute that invalidated rule).
730 We also agree with the State that the District Court was correct in holding that 8 87-1 -
305, ,MCA, which allows the Commission to establish wildlife refuges on private land with
lai-~downer
coi~sent, not relevant to Shook's case. First, as the D~strict
was Court stated, the
closed season m thts case does not create a refuge. Second, contrary to Shook's positton, this
ease does not present the issue of the rrghts of someone huntlng on their oun land because
12
it is undisputed that she was not hunting on her o~vnland. Therefore; the District Court
conectly hcId that Shook's conviction under thc reguiation did nut conflict with tj 87- i -305,
MC'A.
731 Further, as mentioned, we will affim~ trial court when it rcaches the correct result
the
for the wrong reason. In this case, the court cited 18 C.S.C. tj 1 165; for the proposition that
the Tribes have exclusive jurisdiction to regulate hunting on the reservation. However, that
slatule is inapplicable to the case at bar because Shook was charged in state court with
violating 3 87-1-304, MCA; she was not charged in federal court with a violation of federal
law. Therefore, because the District Court correctly concluded that the regulation does not
violate equal protection and correctly concluded that the Commission did not exceed its
authority in promulgating the closed season on Indian reservations, we affirm the court's
result even though it erred in citing 18 U.S.C. 5 1 165.
132 Finally, Shook asserts on appeal that she waived her right to trial only for the
determinations at issue here and that if this Court concludes the District Court properly
denied her motion to dismiss, she is still entitled to a trial on the merits. Shook quotes the
'18 G.S.C. 5 1165, reads:
Whoc\-er, without lawful authority or permission, willfully and knowingly
goes upon any land that belongs to any lndian or Indian tribe, band, or group
and either are held by the United States in trust or are subject to a restriction
against alieilation imposed by the Gnited States, or upoil any lands of the
United States that are resewed for Indian use, for the purpose of huiiti~~g,
trapping, or fishing thereon, or for the removal of game, peltries, or fish
therefrom, shall be fined under this title or imprisoned not more than ninety
days, or both, and all game, fish, and peltries in his possession shall be
forfeited.
transcript at length in order to demonstrate that she did not waive her right to trial and notes
that the stipulated facts approved by the court specifically reserve her right to "litigate the
below facts" should she lose the nlotion to dismiss.
433 The State asserts that the issue of .whether Shook retained her right to trial is not
properly before the Court. We agrec. Shook initially pleaded guilty in justice court and
pursuant to ij 46-1 7-203(2),MCA, she waived her right to trial on the merits in the District
Court. Consequently, the transcript of the proceedings in the District Court regarding this
issue is irrelevant. Therefore, Shook is not entitled to a trial on the merits. Further, the
record establishes that Shook knowingly pleaded guilty to undisputed facts because she
wished to litigate the questions of law regarding the regulation. Finally, she made no motion
to withdraw her plea, so the issue was not preserved.
IV. CONCLUSION
7\34 Because the District Court properly concluded that the Commission regulation closing
Indtan resenations to big game hunting by non-tribal members was a constitutionally
permissible exercise of authority utthin the statutory powers of the Commission, we affirm.