HUNTING ON THE UINTAH AND OURAY RESERVATION IN
VIOLATION OF STATE LAW

March 29, 1971

CRIMINAL JURISDICTION OF UTAH OVER NON-INDIANS HUNTING ON THE UINTAH AND OURAY RESERVATION IN VIOLATION OF STATE LAW

State Laws Indian Lands: Generally-Indian Tribes: Generally

Utah game laws apply to non-Indians who hunt, even with the tribe's permission, on the Uintah and Ouray Indian Reservation. Thus, non-Indians cannot hunt on the reservation without procuring a state license, even though they may be licensed by the tribe to do so.

M-36813

TO: COMMISSIONER OF INDIAN AFFAIRS.

March 29, 1971

SUBJECT: ELK-UTE TRIBE, UINTAH AND OURAY RESERVATION, UTAH.

We have received your request for our advice concerning the Ute Tribe's right to allow nonresidents of Utah to hunt elk on the Uintah and Ouray Reservation. You indicate there were elk on the original Uncompahgre Reservation established prior to Utah's admission to statehood. In addition, the Ute Tribe recently obtained 100 elk from a herd at Yellowstone National Park, paying for their transportation and release on the reservation. We understand that the elk from Yellowstone were allowed to resume their wild state and were not kept in enclosures or attempted to be tamed or domesticated. They are, therefore, to be regarded the same as other wild elk for purposes of this opinion.

The tribe has apparently cooperated with state officials in establishing an elk season for Utah residents in return for Utah's assistance in the cropping of these elk. However, Utah has not been willing to work with the Utes in granting nonresidents of Utah the privilege of taking elk on the reservation. If these nonresidents cannot hunt elk on the reservation, the tribe will be deprived of a substantial source of income. You indicate your belief that the tribe owns the elk on the reservation and has the right to allow nonresidents of Utah to hunt them whether or not Utah grants the nonresident hunters permission.

You cite the act of April 11, 1968, 82 Stat. 78, 25 U.S.C. sec. 1321 (b), to support the proposition that the Indians have authority to control, license, or regulate hunting, trapping and fishing on their reservation.

This provision applies only to states which have assumed some measure of jurisdiction over Indian reservations under this act. Since Utah has not assumed any such jurisdiction, 25 U.S.C. sec. 1321(b) is not germane. Moreover, we do not believe this section gives tribes authority, exclusive or otherwise, to control non-Indian hunting and fishing on a reservation; it merely preserves whatever powers individual tribes may have in states which have been given or have assumed civil or criminal jurisdiction under the act.

While we do not agree with your statement that the elk on the reservation are the property of the Ute Tribe, we concede there is some legal authority to support the proposition of tribal ownership of the fish and wildlife on a reservation. Mason v. Sams, 5 F. 2d 255 (W.D. Wash. 1925); Pioneer Packing Co. v. Winslow, 294 P. 557 (Wash. 1930). However, these cases involved one tribe, the Quinaults, and were concerned with the interpretation of a treaty. Whatever the present validity of these two cases as applied to the Quinaults' or other Indians' rights to fish in the State of Washington, we do not consider them to be controlling, or even persuasive, legal authority in the situation considered here.

Even a state does not hold possessory title to the wildlife within its jurisdiction, but rather holds them in trust for the benefit of the people. Geer v. Connecticut, 161 U.S. 519, 529 (1896); SOLICITOR'S OPINION, 71 I.D. 469, 476 (1964). If the tribe had captured and confined these elk, the argument in favor of tribal ownership would be stronger. However, there can be no individual property in fish and game so long as they remain wild, unconfined, and in a state of nature. 35 Am. Jur. 2d Fish and Game sec. 2 (1967). Title to the game in its natural habitat belongs to the first person who lawfully reduces it to possession. Geer v. Connecticut, supra; 4 Am. Jur. 2d Animals sec. 5 (1962).

We note in passing that Utah has a statute indicating that all game not held in private ownership legally acquired belongs to the state. 3 Utah Code Ann. sec. 23-1-10 (1969). However, it has been held that statutes like these are concerned only with the state's power of regulation, leaving the landowner's interest what it is. McKee v. Gratz, 260 U.S. 127, 135 (1922); Solicitor's Opinion, supra.

Since the states do not "own" the wild game within their borders, we do not see how an Indian tribe can hold title to the game within its reservation unless one argues that tribal sovereignty is a kind of sovereignty superior to that of states or the nationl government, and we consider this implausible. Therefore, we believe that an Indian tribe does not have title to the fish swimming or wildlife running

HUNTING ON THE UINTAH AND OURAY RESERVATION IN

VIOLATION OF STATE LAW
March 29, 1971

free within its reservation, but does have the right to capture such game, after which time possessory title rests in the tribe.

Utah requires all persons to obtain a hunting license before taking any game. 3 Utah Code Ann. sec. 23-1-12 (1969). This provision also applies to Indians who are wards of the Federal Government when outside an Indian reservation. 3 Utah Code Ann. sec. 23-1-8 (1969). Utah also has a statute prohibiting any person from shipping game out of the state without having a valid license or permit attached to it. 3 Utah Code Ann. sec. 23-10-4 (1969). The question thus becomes whether Utah can enforce these statutes against non-Indians hunting elk on the Uintah and Ouray Reservation.

Without question, the tribe has authority to require non-Indians to secure reservation hunting and fishing permits and observe tribal conservation rules while on the reservation. SOLICITOR'S OPINION, 58 I.D. 331, 333, 346 (1943). It is also well settled that state game laws do not apply to Indians on trust lands within the Indian reservation. SOLICITOR'S OPINION, 54 I.D. 517, 520 (1934); In re Blackbird, 109 F. 139 (W.D. Wis. 1901); In re Lincoln, 129 F. 247 (N.D. Cal. 1904); United States v. Hamilton, 233 F. 685 (W.D. N.Y. 1915).1

However, it must be remembered that Indian country is not regarded as an area of exclusive Federal jurisdiction, but is politically and governmentally a part of the state in which state laws apply to the extent that they do not conflict with Federal Indian law. Federal Indian Law (1958) 510, 513-514; Surplus Trading Co. v. Cook, 281 U.S. 647, 650-651 (1930). It is also well settled that offenses committed by a non-Indian against a non-Indian in the Indian country are punishable by the state. United States v. McBratney, 104 U.S. 621 (1881); Draper v. United States, 164 U.S. 240 (1896); New York ex rel. Ray v. Martin, 326 U.S. 496 (1946).

It seems apparent that a tribe's immunity from state hunting and fishing regulations is peculiarly Indian in nature and that a tribe cannot license the immunity to a non-Indian. SOLICITOR'S OPINION, 62 I.D. 186, 194 (1955); Hobbs, Indian Hunting and Fishing Rights II, 37 Geo. Wash. L. Rev. 1251, 1267 (1969). The right is one exer

1 There is a split of authority on the applicability of state conservation regulations to an Indian on non-Indian land within the reservation. State v. McClure, 268 P. 2d 629 (Mont. 1954) (no); State v. Johnson, 249 N.W. 284 (Wis. 1933) (yes). However, today, an attempt to enforce state conservation regulations against Indians in this situation would most likely be considered an interference with reservation self-government. Williams v. Lee, 358 U.S. 217 (1959).

70

cised by members in common with other members of the tribe. 62 I.D. 186, 194 (1955); see Montana Power Co. v. Rochester, 127 F. 2d 189, 192 (9th Cir. 1942).

2

There is authority which indicates that a non-Indian hunting on the reservation has no immunity from state regulations. State of Montana ex rel. Nepstad v. Danielson, 427 P. 2d 689 (Mont. 1967); Ex parte Crosby, 149 Pac 989 (Nev. 1915); see United States v. Sturgeon et al., 27 Fed. cas. 1357 (no. 16,413) (D. Nev. 1879). In addition, various Attorneys General have taken the position that a state has jurisdiction over non-Indians who violate state game laws while on an Indian reservation. 1950–1952 Opinions of the Attorney General of Nevada p. 20; 1953-1954 Report of the Attorney General of New Mexico p. 511; 1960-1962 Opinions of the Attorney General of Oregon p. 11.

In the Danielson case, supra, a non-Indian killed two elk on the Crow Reservation in violation of Montana law. The Supreme Court of Montana stated at page 692:

*** we conclude that the State of Montana has jurisdiction to enforce its fish and game regulations on Indian reservations contained within its boundaries with respect to persons who are not tribal Indians unless precluded from doing so by an act of Congress or unless such enforcement would interfere with selfgovernment on the reservation.

In conclusion, we believe there is ample authority indicating that non-Indians are subject to state game laws while on an Indian reservation. Of course, Utah may not choose to prosecute nonresident nonIndians who may hunt on the Ute Reservation in violation of the state law. If Utah decides to exercise jurisdiction over these non-Indians, however, we believe the state has both the power and the right to do so.

MITCHELL MELICH,

Solicitor.

2 It is interesting to look at the legislative history of the act of July 12, 1960, 74 Stat. 469, 18 U.S.C. §§ 1164, 1165 (1964), which made it unlawful to destroy boundary markers and to trespass on Indian reservations to hunt or fish. In a letter from the Assistant Secretary of the Interior to the Chairman of the House Committee on the Judiciary dated February 13, 1958, recommending passage of this bill, the Assistant Secretary said: "While non-Indians are subject to State laws when they go on Indian Reservations, many of the States do not have criminal trespass laws, and in other States the Indians find it impossible to comply with the requirements of State laws designed to control trespass." (Italics added). H.R. Rep. No. 1686, 86th Cong., 2d Sess. 4 (1960). See also 68 IAM 4.6.2E(1) (c), which indicates that non-Indians who have received tribal consent to hunt or fish are also subject to state and federal law.

IBIA 71-2

March 25, 1971

ESTATE OF OSCAR OUGH, SR.*

Decided March 25, 1971

Indian Probate: Administrative Procedure Act: Applicability to Indian Probate

The requirement of the Administrative Procedure Act, that all decisions of an Examiner shall include a statement of findings and conclusions, and the reasons or basis therefor, on all the material issues of fact, law, or discretion presented on the record, is mandatory and applicable to all decisions of Examiners in Indian Probate proceedings.

Indian Probate: Yakima Tribes: Generally

The amendment to the Yakima Enrollment Act, 84 Stat. 1874 applies to all cases not closed at the time the amendment was enacted, and a case on appeal to the Board of Indian Appeals is considered to be open within the meaning of the amendment.

BOARD OF INDIAN APPEALS

This is an appeal filed by Oscar Ough, Jr., son of the decedent, from an order issued June 4, 1970, by the Examiner of Inheritance denying a petition for rehearing and affirming an earlier order determining the heirs of Oscar Ough, Sr. under the Yakima Enrollment Act, 25 U.S.C. sec. 607 (1964). Appellant filed his appeal with this Board on August 5, 1970, and was within the time requirement prescribed by 25 CFR 15.19.1

In his appeal, Oscar Ough, Jr. claims that the Dallas Dam Settlement Funds are not part of the restricted estate subject to the Yakima Enrollment Act, and should therefore be distributed to the children of the deceased, without reference to whether such persons are eligible under the Act to take as heirs. On the basis of the record we are unable to determine if appellant's contention is correct. In the Order Denying the Petition for Rehearing the Examiner stated that "It has been held that such funds were subject to this Act," but no basis was given in the order for reaching this conclusion.

*Not in Chronological Order.

1 Ben Ough, son of decedent and full brother of Oscar Ough, Jr. has filed an untimely appeal from this order. Title 25 CFR § 15.19 requires that an appeal be filed within 60 days. Ben Ough's appeal exceeded this time limit by more than 30 days. We note, however, that the decision on Oscar Ough, Jr.'s appeal could dispose of the merits of Ben Ough's appeal. Estate of Edward (Edwin) Thomas, IA-836 (May 2, 1966).

424-695-71

78 I.D. No. 4