Opposition Brief — Crow Tribe of Indians v. Repsis

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Supreme Court, U.S, °

“ FILED

APR 25 1996

No. 95-1560

CLERK

In The

Supreme Court of the United States

October Term, 1995

CROW TRIBE OF INDIANS, and

THOMAS L. TEN BEAR,

Petitioners,

CHUCK REPSIS, individually; and

FRANCIS PETERA, individually,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

Wiiuiam U. Hie

Wyoming Attorney General

Ron ARNOLD*

Senior Assistant Attorney General

Kristi T. SANSONETTI

Assistant Attorney General

123 Capitol Building

Cheyenne, Wyoming 82002

Telephone: (307) 777-7844

Counsel for Respondents

Chuck Repsis and Francis Petera

*Counsel of Record

TABLE OF CONTENTS

Page

ES Sia kata Ve hain kh Ride aad santo est 1

SUMMARY OF WARD V. RACE HORSE............ 1

MEISDCATEMENT OF BACT». cise cccuescccsvacce. 3

NG 3 is kos Sa Bea Una es a ok cade. ss. 6

I. The Tenth Circuit’s Decision Is In Accord with

the U.S. Supreme Court’s Prior Decisions

Interpreting Off-Reservation Indian Hunting

eS ee ere eer eee pee 6

A. Subsequent U.S. Supreme Court Decisions

Have Continued to Follow the Principle in

Ward v. Race Horse and Geer v. Connecticut,

161 U.S. 519 (1896), that the States have

Authority to Regulate Game within their

PN iss x6 CANON wh 505 BN NAN wesc hice ess 8

B. Subsequent U.S. Supreme Court Decisions

Have Not Diminished the Application of

the Equal Footing Doctrine in Ward v. Race

PET TELL PLETE TET TTT TT RC LEEEe 10

C. The Tenth Circuit Decision Does Not Con-

flict With This Court’s Decisions Regard-

ing Abrogation of Treaty Rights......... 12

D. The Tenth Circuit’s Distinction Between

Temporary and Continuing Treaty Rights

WOE PINE i 5 <cain iN ide Rabe cl ckviddacecs. 14

E. This Case is One Most Appropriate for the

Application of Stare Decisis .............. 15

II. The Tenth Circuit’s Decision Is In Harmony

with Other Federal and State Courts ........ 16

TABLE OF CONTENTS - Continued

Page

III. The Tenth Circuit’s Alternate Holding that the

Big Horn National Forest Lands Are Occupied

Was. Proper... ies icccceteccnenenesausscaes

IV. The Tenth Circuit Properly Determined that

the State’s Regulations were Reasonable and

Necessary for Conservation.................. 24

CONCLUSION oin on Ska cco si Scaeiud eas Boeke eanee ke 26

lil

TABLE OF AUTHORITIES

Page

CASES

Anderson v. O’Brien, 524 P.2d 390 (Wash. 1974)

oo Fe ae Sy ae Deen 18

Antoine v. Washington, 420 U.S. 194 (1975)....11, 12, 14

Board of County Comm'n v. United States, 308 U.S.

343 (1939) (Black concurrence)..................... 6

Bollin v. Nebraska, 176 U.S. 83 (1900) .............. 6, 10

Brewer-Elliot Oil & Gas Co. v. United States, 260

IEEE ty GAG a ROWE Wiis Wek oO SCE ee ova k cee 6, 10

British-American Oil Prod. Co. v. Board of Equaliza-

tion, 54 P.2d 129 (Mont.), aff'd, 299 U.S. 159

EER SL Vy eae ded Chik cianh shan tde0's ens cc cee 17

Commonwealth of Pennsy!vania v. Coxe, 4 U.S. 170

EEE REE REED Eee ne ene 15

Confederated Tribes of the Umatilla Indian Reserva-

tion, 262 F.Supp. 871 (D.Ore. 1966) ............... 17

Comte © Smith, 221 US. 559 (198) ................ 6, 10

Coyle v. Smith, 113 P. 944 (Okl.) (dissent), aff'd, 221

RS ee ae ar 17

Crow Tribe v. Repsis, 73 F3d 982 (10th Cir. 1995)... . passim

Crow Tribe v. Repsis, 866 F.Supp. 520 (D.Wyo.

1994), aff'd, 73 F.3d 982 (10th Cir. 1995)...... 1, 6, 16

Department of Game v. Kautz, 422 P.2d 771 (Wash.

1967), aff'd, Payallup I, 391 U.S. 392 (1968) ........ 18

Dick v. United States, 208 U.S. 340 (1908)......... 11, 19

Ex Parte Crosby, 149 P. 989 (Nev. 1915).............. 17

Ex Parte Nowabbi, 61 P.2d 1139 (Okl. 1936) .......... 17

TABLE OF AUTHORITIES - Continued

Page

Ex Parte Webb, 225 U.S. 663 (1911) .............0.. 6, 10

Frantz v. Autry, 91 P. 193 (Okl. 1907)...........-++-. 18

Gearlds v. Johnson, 183 F. 611 (D. Minn. 1911)........ 16

Geer v. Connecticut, 161 U.S. 519 (1896)............. 8, 9

Godfrey v. Iowa Land & Trust Co., 95 P. 792 (Okl.

GONE ooo. k ng hb eiwpianacn whey Cea echoes hasan 17

Higgins v. Brown, 94 P. 703 (Okl. 1908)...........--. 17

Holcomb v. Confederated Tribes of Umatilla Reserva-

tion, 382 F.2d 1013 (9th Cir. 1967)...... 19, 21, 22, 24

Hollow Horn Bear v. Jameson, 95 N.W.2d 181 (S.D.

RE TE ad Re ei tas SG So ee eke Shea 18

Huff v. State, 133 P. 265 CE: PRO a AVi® sakinwen bona 17

Hughes v. Oklahoma, 441 U.S. 322 (1979)............ 8, 9

In re the General Adjudication of All Rights to Use

Water in the Big Horn River System, 753 P.2d 76

(Wyo. 1988), cert. denied, 492 U.S. 926 (1989) ...... 18

Ivanhoe Irrig. Dist. v. McCracken, 357 U.S. 275

CRB ie sist wdace > chin nha chek Rbee hs ae Ae CER 23

John Bund Brewing Co. v. Great N. Ry. Co., 246 U.S.

GBT -CEGTGR oi nc 26 8 ic es PRE in GE is 6

Kennedy v. Becker, 109 N.E. 116 (N.Y. 1915), aff'd,

DOE We, Oe ME. NW Saacseeanbaueus centeuesanene 17

Kleppe v. New Mexico, 426 U.S. 529, reh’g denied, 429

US:. S73 CRG) ofa. hs HTL OOK on leans ass 9, 23

TABLE OF AUTHORITIES - Continued

Page

Lac Courte Orelles Band v. Voight, 700 F.2d 341 (7th

Cir.), cert. denied, 464 U.S. 804 (1983)........... 14, 21

LaCoste v. Department of Conservation, 263 U.S. 545

SRPRE SA ANAAVAN Ca tana nna Ca Ceska OORT L relied ie Fe 6

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)............ 6

MacCormick v. Molinari, 16 P.P.R. 389 (Puerto Rico

OME hs bi Vg ae RRK wa Wah Ede ee OR ERT META RCC ok es. 18

Makah Indian Tribe v. McCauly, 39 F.Supp. 75 (W.D.

Wash. 1941), rev'd, 128 F.2d 867 (9th Cir. 1942) .... 17

McCabe v. Atchison, T.& S.F. Ry. Co., 186 F. 966 (8th

Coe. SU pe Me my. aoe Cok BOR TION ce... 16

McCabe v. Atchison, T.& S.F. Ry. Co., 235 U.S. 151

CRW GAN SRN 44 mc 6k od ae baa hese abees Nid vhs Nears 6, 10

Menominee Tribe of Indians v. United States, 391 U.S.

Se REPU 8 5 C0 dS Sao BERG LU SPEED bah Sido ac nae 6

Menominee Tribe of Indians v. United States, 388 F.2d

998 (Ct.Cl. 1967), aff'd, 391 U.S. 404 (1968)........ 16

Merrill v. Bishop, 287 P.2d 620 (Wyo. 1955) .......... 18

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) ..... 6

Metlakatla Indian Community v. Egan, 362 P.2d 901

(Alaska 1961), rev'd, 369 U.S. 45, aff'd, 369 U.S.

Oe SEPA 6 6s a 2enngn ce vbn& +9W PVORSERANEN: U8 5% cnele 17

New York ex rel. Bryant v. Zimmerman, 278 U.S. 63

SEER Ns br NUE be te ened ben tna Ghee sche Sak cad vA ce 6

New York ex rel. Kennedy v. Becker, 241 U.S. 556

SEE PEMA Warne ab he bo sha AO eas FORE O04 eos canes 6

TABLE OF AUTHORITIES - Continued

Page

Oregon Wildlife Dept. v. Klamath Tribe, 473 U.S. 753

(TOBE 0 '< civ hous' nb 40d qa eb VRRR EROS Petes Ueeees 6, 13, 14

Organized Village of Kake v. Egan, 174 F.Supp. 500

(D>. Alasien-IGGO) 5 cian va cad pve cee pcareeaeyrueswts 17

Organized Village of Kake v. Egan, 369 U.S. 60 (1962) ..... 6

Pablo v. People, 46 P. 636 (Colo. 1896) ............... 17

Patterson v. McLean Credit Union, 491 U.S. 164

(10GB) os cdi hc. vee Res aaa ey oe CMSs CRS 15, 20

People of South Naknek v. Bristol Bay Borough, 466

FSupp. 870 (D.Alaska 1979) <0 0.00 cass arececeeses 17

People v. Chosa, 233 N.W. 205 (Mich. 1930) .......... 17

People v. LeBlanc, 248 N.W.2d 199 (Mich. 1976) ...... 21

People v. McCovey, 685 P.2d 687 (Cal.), cert. denied,

469 US. WORE Fer as ck cab Sash oe dese cakasest ce 17

Puyallup Tribe v. Department of Game (Puyallup I),

Sod US. TOS CRMer eae cs tiecaeebeviuseeschseece 9, 18

Quill Corp. v. North Dakota, 504 U.S. 298, 119

L.Ed.2d 91, 212: 5.00: 1906 C1982} os. . ete ee 15

Ruddy v. Rossi, 248 U.S. 104 (1918) (Holmes dis-

GUNES sc 6a 4h. od bck Rt Aah abe eee eke 16 aes 6, 10

Seminole Tribe of Florida v. Florida, et al., Civ. No.

94-12, slip op. (U.S. Mar. 27, 1996)................ 15

Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974) ... 19, 21, 22

Smith v. Hepburn, 113 P. 932 (Okl. 1911) ............ 17

Starks v. Joines, 223 P. 882 (Okl. 1924)............... 17

State of Arizona v. Hobby, 221 F.2d 498 (D.C. Cir.

REGED adv vera cbcnd uawe LOWEST SS ECEARGURAEE TESS EKES 16

Vii

TABLE OF AUTHORITIES - Continued

Page

State of Washington v. Confederated Tribes of the Col-

ville Indian Reservation., 447 U.S. 134 (Rehnquist

concurrence and dissent), reh’g denied, 448 U.S.

Fak ERED SEIEMIN hs EL ca CUAL CK Soe... 6

State v. Arthur, 261 P.2d 135 (Idaho 1953), cert.

denied, 347 U.S. 937 (MRIS 9 ee hee 19, 20, 24

State v. Cutler, 708 P.2d 853 (Idaho Ai wehkcians 21

State v. Gurnoe, 192 N.W.2d 892 i 18

State v. Jondreau, 185 N.W.2d 375 (Mich. 1971)....... 19

State v. LaBarge, 291 N.W. 299 (Wis. 1940)........... 18

State v. McConville, 139 P.2d 485 (Idaho 8 17

State v. McCoy, 387 P.2d 942 (Wash. SUE Canes oh aaa 18

State v. Meninock, 197 P. 641 (Wash. DIL k Fao cw wk 18

State v. Miller, 689 P.2d 81 (Wash. | Se 21, 24

State v. Morrin, 117 N.W. 1006 (Wis. | 18

State v. Sanapaw, 124 N.W.2d 41 (Wis. 1963), cert.

denied, 377 U.S. 991, reh’g denied, 379 U.S. 871

CRUG ia tte Sisals beach sD SABA edu bees chs Wi'bie'e's dae 18

State v. Satiacum, 314 P.2d 400 4 Se) ys 18

State v. Starkweather, 7 N.W.2d 747 (Minn. i ee 17

State v. Stasso, 563 P.id 562 (Mont. 1977)......... 21, 24

State v. Superior Court, 181 P. 688 (Wash. Re 18

State v. Tinno, 497 P.2d 1386 (Idaho 1972) ...19, 20, 21, 24

State v. Towessnute, 154 P. 805 (Wash. 1916).......... 18

State v. Truax, 157 N.E. 792 (Ohio 1927)............. 17

Viii

TABLE OF AUTHORITIES - Continued

Page

State v. Tulee, 109 P.2d 280 (Wash. 1941), rev’d, 315

US. GBR CARee ons 06 oha.0.0arsananeokase tapas st oaaee 18

State v. Wallahee, 255 P. 94 (Wash. 1927)............. 18

Sturdevant v. State, 251 N.W.2d 50 (Wis.), cert.

Geniad, 4B US FIO CSF TFs 6c vacvctvnencinevnsacss 18

Swim v. Bergland, 696 F.2d 712 (9th Cir. 1983) ....... 24

Toomer v. Witzell, 73 F.Supp. 371 (E.D.S.C. 1947),

aff'd in part, 334 U.S. 385 (1948) ..............005. 17

Tsosie v. United States, 11 Cl. Ct. 62 (1986), aff'd, 825

R2ed SS PR Ce Sie isthe hs ee rc ewe vas 16

Tulee v. Washington, 315 U.S. 681 (1942) ..... 6, 7, 8, 12, 14

Underhill v. State, 237 P. 628 (Okl. 1925) ............ 17

United States v. 2,271.29 Acres, 31 F.2d 617 (D.Wis.

GIGI s Saidaio vs Kc hE KDRE RE Wh Las Ue TO ei ea 08% 16

United States v. Brooks, 32 F.Supp. 422 (N.D.Ind.

| YG PE RVET Es) etic eel fe rah iy Sea ee Pee 17

United States v. Cardish, 145 F. 242 (E.D.Wis. 1906) .... 16

United States v. Hicks, 587 F.Supp. 1162 (W.D.Wash.

IS in 50 iene 9 x era elas ine Oden hol eee a 24

United States v. Karnuth, 24 F.2d 649 (2d Cir. 1928),

00 E, BID UIDs: Oe Re hans 084d GARR oesea Caen 16

United States v. McCullaugh, 221 F. 288 (D.Kan.

RRR sc on wx GRU Vic SE REUE Ui Wekic bad ce eh Wendt kc ces Yu 16

United States v. Michigan, 471 F.Supp. 192

(W.D.Mich 1979), aff'd in part, 653 F.2d 277 (Sth

Cir.), cert. denied, 454 U.S. 1124 (1981).......... 19, 21

TABLE OF AUTHORITIES - Continued

United States v. Samples, 258 F. 479 (W.D.Mo. 1919),

aff'd, Missouri v. Holland, 252 U.S. 416 (1920)..

United States v. Sandoval, 198 F. 539 (D.N.M. 1912),

MOOR 204 AVS. BB (UGB). oo sss vacnce deed seeds

United States v. State Tax Comm'n of Mississippi, 541

Rises Se ee CE TI os a ec.

United States v. Thompson, 258 F. 257 (E.D.Ark.

RRR Rin Nal Ch NGA IU AEA COs cok OU hi voce.

United States v. Three Winchester 30-30 Caliber, 504

F.2d 1288 (7th Cir. ROPE CES i Gti en HLL AS

United States v. Tulee, 110 F.2d 797 (9th Cir. 1940) ....

United States v. United States Express Co., 180 F.

1006 (W.D.Ark. 1910), rev’d, 191 F. 673 (8th Cir.

eS PR NP RS ee are Ih Gs Rea Sa gel ee

United States v. Washington, 384 F.Supp. 312

(W.D.Wash. 1974), aff'd, 520 F.2d 676 (9th Cir.

1975), cert. denied, 423 U.S. 1086, reh’g denied, 424

U.S. 978 (1976), vacated, 443 U.S. 658 (1979)...

United States v. Winans, 198 U.S. 371

t+ Mba lh Bll EE a eed ea 6, 7, 10, 11,

Van Camp Sea Food Co. v. Department of Nat'l

Resources, 30 F.2d 111 (S.D.Cal. 1929) .........

Vasquez v. Hillery, 474 U.S. 254 (1986)...........

Virginia v. West Virginia, 246 U.S. 565 (1917).....

Wadsworth v. Boysen, 148 F. 771 (8th Cir. 1906) ..

Ward v. Race Horse, 163 U.S. 504 (1896)..........

12, 14

eee asererasasamscmmmmmmmmmmm

ream ma tama asm CC ee CL OL LLL LLL LLL LLL

TABLE OF AUTHORITIES - Continued

Page

Washington State Commercial Passenger Fishing Ves-

sel Ass‘n v. Tollefson, 571 P.2d 1373 (Wash. 1977),

vacated, 443 U.S. 658 (1979) .... 0... eee e eee eeeeees 18

Washington v. Fishing Vessel Ass'n, 443 U.S. 658

(1DT7D) cc cvccccncnccccccncscuscenscvecsaccvaseceess 6

Weeks v. United States, 406 F.Supp. 1309 (W.D.OKI.

1975), rev'd, Delaware Tribal Business Comm. v.

Weeks, 430 U.S. 73, reh'g denied, 431 U.S. 960

(1977) oc ccc ccccccccncccescneseeneeenseeeeseseaeees 17

Williams v. Johnson, 122 P. 485 (Okl. 1912), aff'd, 239

U.S. 414 (1915) 2... cc cece cece eee eee en een enn eens 17

Winters v. United States, 207 U.S. 564 (1908) ...... ee

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ....-. 13

U.S. Starutes & REGULATIONS

Federal Land Policy and Management Act

(FLPMA), 43 U.S.C. §§ 1701-84 .... 0... ee ee eee eees 23

Multiple-Use, Sustained-Yield Act of 1960

(MUSY), 16 U.S.C. §§ 425, 528-31 .............-22, 23

National Forest Management Act of 1976 (NFMA),

16 U.S.C. §§ 1600-14... .. 6... ccc eee eee eee eens 23

36 C.RR. § 241.2... ccc ccc c cece eee eee n eee eenes 23

OrHER AUTHORITIES

15 Stat. 649 (Crow Treaty of 1868, Article 4) ......... 2

15 Stat. 673 (Bannock Treaty of 1868, Article 4) ...... 2

Wyoming's Act of Admission, 26 Stat. 222, ch. 664,

§ 1 (July 10, 1890)... ... 6... cece cece ee eee eee eee ees 3

TABLE OF AUTHORITIES - Continued

Wyoming’s Territorial Act, 15 Stat. 178, ch. 235

i Pavitt teelid cand dengashacbada se

Big Horn National Forest Act of June 4, 1897, ch.

83 | Beery rer

Big Horn National Forest Presidential Proclama-

tion, No. 30, 29 Stat. 909 (1897)........

29 U.S. Op. Att’y Gen. 455 (June 19, 1912)..

71 Sol. Op. 469 (I.D. No. 12, Dec. 1, 1964) .

94 Sol. Op. 418 (I.D. April 5, 1934) ....

93 Sol. Op. 349 (I.D. April 15, 1931)

3 Wyo. Att’y Gen. Op. 11 (Feb. 26, 1973) ..

Wyo. Att’y Gen. Op. 27 (July 25, 1901)...

Wyo. Att’y Gen. Op. 51 (Nov. 30, 1901)

Wyo. Att’y Gen. Op. 97 (July 29, 1899).

1977 Memorandum of Understanding ...

Page

INTRODUCTION

Respondents, Chuck Repsis and Francis Petera

(Repsis), submit this brief in opposition to the brief on

petition for writ of certiorari filed by Petitioners, the

Crow Tribe and Thomas L. Ten Bear (Crow Tribe). The

United States Court of Appeals for the Tenth Circuit

properly affirmed the Wyoming Federal District Court's

decision. The Tenth Circuit determined that the case of

Ward v. Race Horse, 163 U.S. 504 (1896), is controlling and

that “there is nothing to indicate that it has been ‘over-

ruled, repudiated or disclaimed.’ ” The Tenth Circuit also

properly concluded that the Big Horn National Forest has

been “occupied” since the creation of the national forest

in 1887, and that the Crow Tribe and its members are

subject to the game laws of the State of Wyoming. No

special or important reasons exist which should compe!

this Court to grant review on writ of certiorari

SUMMARY OF WARD V. RACE HORSE

Both the Wyoming District Court and the Tenth Cir.

cuit held that the facts presented in Ward v. Race Horse

163 U.S. 504 (1896), are indistinguishable from the facts

presented in this case. Crow Tribe v. Repsis, 73 F.3d 982

985-86, 987-88 (10th Cir. 1995); Crow Tribe v. Repsis, 866

F.Supp. 520, 524 (D.Wyo. 1994). Except for a 100-year time

span, this case is simply “deja vu all over again.”'

1 Yogie Berra

Specifically, neither Mr. Race Horse, a Bannock

Indian, nor Mr. Ten Bear, a Crow Indian and Petitioner in

this case, were residents of the State of Wyoming. Both

were arrested for illegally killing elk on federal lands

located in the State in violation of state law. See 163 U.S.

504; 73 F.3d at 985. In their defense, both Mr. Race Horse

and Mr. Ten Bear claimed identical treaty language gave

them and all members of their tribes unrestricted, off-

reservation hunting rights:

The Indians herein named agree . . . they will

make said reservation[s] their permanent home

. . but they shall have the right to hunt on

unoccupied lands of the United States as long as

game may be found thereon, and as long as

peace subsists among the whites and Indians on

the borders of the hunting districts.

163 U.S. at 505, quoting, 15 Stat. 673 (Bannock Treaty of

1868, Article 4); 73 F.3d at 985-86, quoting, 15 Stat. 649, 650

(Crow Treaty of 1868, Article 4) (emphasis added).

In construing the treaty hunting provision in its

entirety, the Race Horse Court held that the words “unoc-

cupied lands” must be read together with the words

“hunting districts.” 163 U.S. at 508. Thus, the words

“unoccupied lands” were interpreted as being “only lands

of that character embraced within what the treaty denom-

inates as hunting districts,” and nct all the lands ceded

by the Indians which were owned by the United States

and not yet settled. 163 U.S. at 508; 73 F.3d at 988

(emphasis added). Hence, this Court determined that the

right to hunt provided in the treaty was not a perpetual

right, but a temporary and precarious privilege, expressly

limited to the continuing existence of the hunting dis-

tricts referred to in the treaty. 163 U.S. at 508-509, 510 &

515; 73 F.3d at 988.

In July 1868, the same year the Bannock and Crow

treaties were ratified, the Act providing for a temporary

government for the Territory of Wyoming was enacted

and provided:

That nothing in this act shall be construed to

impair the rights of person or property now

pertaining to the Indians in said Territory, so

long as such rights shall remain unextinguished

by treaty between the United States and such

Indians.

15 Stat. 178, ch. 235 (July 1868); Race Horse, 163 U.S. at

506; Crow Tribe, 73 F.3d at 988-89 n.3.

However, as this Court points out in Race Horse,

Wyoming’s later 1890 Act of Admission does not include

this provision and instead “contains no exception or res-

ervation in favor of or benefit of Indians.” 163 U.S. at 506

& 511; 73 F.3d at 989. The Act, however, provides:

That the State of Wyoming is hereby declared to

be a State of the United States of America, and is

hereby declared admitted into the Union on an

equal footing with the criginal States in all respects

whatever... .

26 Stat. 222, ch. 664, § 1 (July 10, 1890) (emphasis added);

73 F.3d at 989 n.3.

A. Extinguishment of Hunting Districts

In reconciling the hunting provision of the treaty

with Wyoming’s Act of Admission, this Court determined

that the treaty right to hunt within the “hunting districts”

ended “when the territory ceased to be a part of the

hunting districts and came within the authority and juris-

diction of [the] state.” 163 U.S. at 509-510. In other words,

the “hunting districts” referenced in the treaty no longer

existed once they were subsequently included within the

borders of the State of Wyoming.

The Court based its determination that this was a

temporary and precarious privilege, in part, on the fact

that Indian “hunting districts” referred to in the treaty

could be sold or carved out as a federal reservation, as

had been done with Yellowstone National Park, without

violating any treaty right to hunt. Id., at 510. See also 73

F.3d at 988.

B. Application of the Equal Footing Doctrine

In addition, this Court determined that the right to

hunt within these “hunting districts” conflicted with the

State of Wyoming’s right to regulate and control the

taking of game within its borders. 163 U.S. at 509. Speci-

fically, the treaty gave the Bannock Indians a right to hunt

which was in conflict with the State’s regulation of game.

This Court reasoned that the State must be allowed to

regulate the game within its jurisdiction, in order to place

it on equal footing with all other states which regulate the

game found within their jurisdictions. Id. at 510. Thus,

this Court determined that because the treaty gave the

Bannock Indians only a temporary and precarious privi-

lege to hunt, and the Act of Admission was otherwise

silent, this Act superseded the Act ratifying the 1868

Bannock treaty. 163 U.S. at 511 & 515.

In making this determination, the Race Horse Court

noted that where Congress created rights during the exis-

tence of a Territory, which by their nature imply perpetu-

ity and Congress’ consequent purpose for them to

continue after the State’s admission, such continuation

will be upheld, although the enabling act is silent. See id.

at 515; 73 F.3d at 989. Nevertheless, in this case, where the

nature of the right created gives no implication of contin-

uance, and is essentially perishable and intended to be of

limited duration, the treaty “does not give [the Tribe] the

right to exercise this privilege within the limits of [Wyo-

ming] in violation of its laws.” 73 F.3d at 989, quoting, 163

U.S. at 504.

MISSTATEMENT OF FACT

Contrary to its statement to this Court, the Crow

Tribe in its original Complaint and Amended Complaint,

alleged an “unrestricted” right to hunt in Wyoming pur-

suant to Article 4 of the 1868 Treaty between the Crow

Tribe and the United States. (Compare Petitioners’ S.Ct.

brief, at 3, n.1 with Crow Tribe, 73 F.3d at 988. Thus, the

Tenth Circuit precisely and succinctly represented the

allegations presented by the Crow Tribe in both of its

Complaints. Id.

ARGUMENT

I. The Tenth Circuit’s Decision Is In Accord with the

U.S. Supreme Court's Prior Decisions Interpreting

Off-Reservation Indian Hunting Rights.

As the Tenth Circuit so succinctly states, “Ward v. Race

Horse is alive and well.” 73 F.3d at 994. As the Wyoming

District Court observed, this Court has continued to cite to

Race Horse in support of various propositions of law. 866

F.Supp. at 524. Specifically, this Court has cited to or relied

on the Race Horse case over twenty times during the last

hundred years, and as recently as 1985.2

2 Oregon Wildlife Dept. v. Klamath Tribe, 473 U.S. 753, 773

n.23 (1985); State of Washington v. Confederated Tribes of the

Colville Indian Reservation, 447 U.S. 134, 179 (1980) (Rehnquist

concurrence and dissent), reh’g denied, 448 U.S. 911 (1980);

Washington v. Fishing Vessel Ass'n, 443 U.S. 658, 682 n.25 (1979);

Mescalero Apache Tribe v. Jones, 411 U.S. 145, 149 (1973);

Menominee Tribe of Indians v. United States, 391 U.S. 404, 412 n.12

(1968); Organized Village of Kake v. Egan, 369 U.S. 60, 75 (1962);

Tulee v. Washington, 315 U.S. 681, 683 n.2 (1942); Board of County

Comm'n v. United States, 308 U.S. 343, 354 n.5 (1939) (Black

concurrence); New York ex rel. Bryant v. Zimmerman, 278 U.S. 63,

70 n.6 (1928); LaCoste v. Department of Conservation, 263 U.S. 545,

549 (1923); Brewer-Elliot Oil & Gas Co. v. United States, 260 U.S.

77, 83 (1922); Ruddy v. Rossi, 248 U.S. 104, 109 (1918) (Holmes

dissent); John Bund Brewing Co. v. Great N. Ry. Co., 246 U.S. 651,

at 651 (1917); Virginia v. West Virginia, 246 U.S. 565, 593 (1917);

New York ex rel. Kennedy v. Becker, 241 U.S. 556, 562 (1915);

McCabe v. Atchison, T.& S.F. Ry. Co., 235 U.S. 151, 159-60 (1914);

Ex Parte Webb, 225 U.S. 663, 683, 690 (1911); Coyle v. Smith, 221

U.S. 559, 573 & 576 (1910); Lone Wolf v. Hitchcock, 187 U.S. 553,

566 (1903); Bollin v. Nebraska, 176 U.S. 83, 88 (1900). See also

Winters v. United States, 207 U.S. 564 (1908) (argued in counsel’s

brief, but not cited in opinion); United States v. Winans, 198 U.S.

371, 374-75 (1905) (argued in counsel’s brief for appellees, but

not cited in opinion).

The U.S. Supreme Court has had numerous oppor-

tunities over the past hundred years to overrule Race

Horse, either expressly or implicitly. It has not.

In 1905, only nine years after issuing the Race Horse

decision, this Court had an opportunity to overrule Race

Horse, on grounds similar to those cited by Petitioners. In

United States v. Winans, 198 U.S. 371 (1905),3 this Court

upheld an Indian treaty right to take “fish at all usual and

accustomed places in common with the citizens of the

Territory of Washington.” Unlike Race Horse where the

treaty language conveyed only a temporary privilege to

hunt, this Court concluded that the treaty language in

Winans imposed a servitude on the lands bordering the

Columbia River that was intended to be continuing

against the United States and its grantees, including the

State. 198 U.S. at 379; 73 F.3d at 991.

Almost forty years later, in Tulee v. Washington, this

Court again recognized that a treaty right could be a

continuing right to hunt. 315 U.S. 681 (1942). In that case,

the treaty language on off-reservation hunting rights was

identical to the treaty language in Winans, and dissimilar

to the treaty language in issue in this case. See 315 US. at

683.

As the Tenth Circuit notes in its decision, the Race

Horse Court was fully aware of Congress’ power to create

continuing rights which would be binding on the states.

73 F.3d at 991, citing, 163 U.S. at 515. Nevertheless, in

3 While the Race Horse case was briefed in Winans, this

Court did not cite to nor, as Petitioners contend, in any way

overrule Race Horse. Id. at 374-75.

order to be binding on a state, the right must be continu-

ing or perpetual, and intended at its formation to be

continuing against the United States and its grantees. 73

F.3d at 991, citing, Winans, 198 U.S. at 381-82. While the

treaties in Winans and Tulee provide a continuing hunting

right or servitude on the land, the treaty at issue in this

case, like the treaty in Race Horse, imposes a temporary

hunting right which only continued with the existence of

“hunting districts.” Those districts no longer existed once

they were subsequently included within the borders of

the State of Wyoming.

A. Subsequent U.S. Supreme Court Decisions

Have Continued to Follow the Principle in

Ward v. Race Horse and Geer v. Connecticut, 161

U.S. 519 (1896), that the States have Authority

to Regulate Game within their Borders.

In Race Horse, this Court stated that “[t]he power of a

state to control and regulate the taking of game cannot be

questioned.” 163 U.S. at 507, citing, Geer v. Connecticut,

161 U.S. 519 (1896). The Race Horse Court went on to

explain that it is a necessary incident of a sovereign state

to have authority to regulate the killing of game within

its borders. 163 U.S. at 510.

This principle has not changed. While this Court in

Hughes v. Oklahoma, 441 U.S. 322, 335 (1979), overruled

state ownership of wildlife, as articulated in Geer, it did

not overrule or in any way reject the principle that the

States nevertheless have authority to regulate wildlife

within their borders. Id. at 338-39. It stated:

The overruling of Geer does not leave the States

powerless to protect and conserve wild animal

life within their borders. Today’s decision makes

clear, however, that States may promote this

legitimate purpose only in ways consistent with

the basic principle that ‘our economic unit is the

Nation,’ and that when a wild animal becomes

an article of commerce its use cannot be limited

to the citizens of one State to the exclusion of

citizens of another State.

Id. See also 73 F.3d at 990. Thus, as the Tenth Circuit stated

in its opinion, “[t]he Court in Hughes has not stripped the

states of their authority to regulate and control game; it

has merely removed the 19th century legal fiction of state

ownership of game.” 73 F.3d at 990, citing, Hughes, 441

U.S. at 336. “Unquestionably, the States have broad

trustee and police powers over wild animals within their

jurisdictions.” Id., quoting, Kleppe v. New Mexico, 426 U.S.

529, 545, reh’g denied, 429 U.S. 873 (1976).

The Tenth Circuit noted that this Court has recog-

nized that states may regulate off-reservation treaty rights

“in the interest of conservation, provided the regulations

meet appropriate standards and do not discriminate

against the Indians.” Crow Tribe, 73 F.3d at 992, quoting,

Puyallup Tribe v. Department of Game, (Puyallup I), 391 U.S.

392, 398 (1968) (emphasis added). However, it properly

concluded that this is not the case here where the Crow

Tribe’s right to hunt in hunting districts was repealed by

the Act admitting Wyoming into the Union. Id. “There-

fore, the Tribe and its members are subject to Wyoming’s

game laws and regulations regardless of whether the

regulations are reasonable and necessary for conserva-

tion.” Id. at 992-93. The Tenth Circuit further concluded

that even if the Crow Tribe had a continuing right surviv-

ing Wyoming's admission, the record has ample evidence

to support the State’s contention that its regulations are

reasonable and necessary for conservation. Id. at 993.

B. Subsequent U.S. Supreme Court Decisions

Have Not Diminished the Application of the

Equal Footing Doctrine in Ward v. Race Horse.

Subsequent United States Supreme Court decisions

have not diminished the application of the equal footing

doctrine as applied in Race Horse or with respect to off-

reservation hunting. To the contrary, Race Horse has been

relied on by this Court in over seven cases when discuss-

ing the principles of the equal footing doctrine.* More-

over, the equal footing doctrine has not been applied in

other off-reservation hunting cases, not because it is no

longer favored, but because it did not apply where the

hunting right in question was perpetual and continuing.

For example, in Winans, this Court addressed the

issue of the equal footings doctrine, but only after it

determined that the treaty language in issue imposed a

4 Brewer-Elliot Oil & Gas Co. v. United States, 260 U.S. 77, 83

(1922); Ruddy v. Rossi, 248 U.S. 104, 109 (1918) (Holmes dissent);

Virginia v. West Virginia, 246 U.S. 565, 593 (1917); McCabe v.

Atchison, T.& S.F. Ry. Co., 235 U.S. 151, 159-60 (1914); Ex Parte

Webb, 225 U.S. 663, 683, 690 (1911); Coyle v. Smith, 221 U.S. 559,

573 & 576 (1910); Bollin v. Nebraska, 176 U.S. 83, 88 (1900).

ag enna 8 Bigg een

— pow

————

servitude on the lands bordering the Columbia River,

which continued against the United States and the State.

198 U.S. at 381-82. It concluded that the equal footing

doctrine would not apply where the United States, while

holding the country as a territory, created rights which

would be binding on the states. Id. Thus, the Court did

not reject the equal footings doctrine as inapplicable to

any off-reservation hunting right, but determined that it

was not applicable where the right extended was perpet-

ual.

Similarly, the Tenth Circuit in discussing Winans, rec-

ognized that the equal footing doctrine does not prevent

the United States from creating a right in a territory

which would be binding on the state on its admission

into the Union. However, it noted that, like the treaty in

Race Horse, the treaty language involved here does not

provide a continuing or perpetual right which is binding

on the State of Wyoming. 73 F.3d at 991.

Petitioners rely extensively on another decision, An-

toine v. Washington, 420 U.S. 194 (1975), in support of their

contention that the equal footing doctrine no longer has

favor in this Court with respect to off-reservation hunt-

ing. In Antoine, this Court interpreted an agreement, rat-

ified by Congress, for the benefit of the Indians which

provides that “the right to hunt and fish in common with

all other persons on lands not allotted to said Indians

shall not be taken away or in anyway abridged.” Id. at 196

(emphasis added). This Court held that the State’s con-

sent to the Agreement was not required and that because

it was ratified by Congress, it was superior and para-

mount to the authority of any affected state. Id. at 204,

citing, Dick v. United States, 208 U.S. 340 (1908).

This case is distinguishable from Race Horse and the

current case for the very same reasons articulated in

Winans and Tulee. The agreement in Antoine and the

treaties in Winans and Tulee confer a continuing right to

hunt which runs with the land and is not a temporary

and precarious right, as it is in the Bannock and Crow

treaties. Thus, neither the admission of a state into the

Union nor the equal footing doctrine would be sufficient

to abrogate the type of continuing right conveyed in

those cases.

-—Consequently, broad and sweeping generalizations,

made by the Crow Tribe and others, that the equal footing

doctrine no longer applies to off-reservation hunting,

should be disregarded. (See Petitioners’ S.Ct. Brief at 12 &

13). Generalizations, which are not based on the facts of

each case, are not sufficient grounds for this Court to

reject the 100-year old application of the equal footings

doctrine in a case as fact specific as Race Horse.

C. The Tenth Circuit Decision Does Not Conflict

With This Court’s Decisions Regarding Abroga-

tion of Treaty Rights.

As the Tenth Circuit Court noted, the canon of treaty

construction favoring the Indian interpretation and

resolving ambiguities in favor of the Indians was well

established at the time the Court decided Race Horse. 73

F.3d at 992. In fact, as the Tenth Circuit notes, in 1832,

sixty-four years prior to the Race Horse decision, this

Court held:

The language used in treaties with the Indians

should never be construed to their prejudice. If

words be made use of, which are susceptible of

a more extended meaning than their plain

import, as connected with the tenor of the treaty,

they should be considered as used only in the

latter sense. . . . How the words of the treaty

were understood by this unlettered people,

rather than their critical meaning should form

the rule of construction.

Id. at 992, quoting, Worcester v. Georgia, 31 U.S. (6 Pet.) 515,

582 (1832).

The Tenth Circuit properly noted that the Court in

Race Horse recognized this canon of construction, but

declined to follow it, stating:

Doubtless the rule that treaties should be so

construed as to uphold the sanctity of the public

faith ought not to be departed from. But that

salutary rule should not be made an instrument

for violating the public faith by distorting the

words of a treaty, in order to imply that it con-

veys rights wholly inconsistent with its lan-

guage and in conflict with an act of Congress,

and also destructive of the rights of one of the

States.

73 F.3d at 992, quoting, Race Horse, 163 U.S. at 516.

Nevertheless, the Crow Tribe complains that under

more recent rules of construction, silence in Wyoming's

Act of Admission, as to any exemption or reservation in

favor of Indians, is not enough to abrogate a treaty right.

However, as recently as 1985, in interpreting an agree-

ment with an Indian tribe, this Court determined that

silence in an agreement concerning hunting rights is con-

sistent with an intent to end those rights outside the

reservation. See Oregon Wildlife Dept. v. Klamath Tribe, 473

U.S. 753, 773 n.23 (1985). Specificatly, this Court stated

that “viewed in the entirety of its particular historical

context, silence concerning specific rights in the 1901

Agreement is consistent with an intent to end any special

right of the Tribe outside the reservation.” Id., citing, Race

Horse, 163 U.S. 504 (1896) (emphasis added).

D. The Tenth Circuit’s Distinction Between Tem-

porary and Continuing Treaty Rights was

Proper.

The Tenth Circuit properly distinguished this case

and the Race Horse case from this Court’s other cases

which interpret treaty language giving a permanent and

continuing right to hunt. 73 F.3d at 990-993, 994 n.6.

While the treaties in Winans and Tulee, and the Agreement

in Antoine, provide a continuing hunting right, the treaty

at issue in this case, like the treaty in Race Horse, imposes

a hunting right which only continued with the existence

of “hunting districts.” Those districts no longer existed

once they were subsequently included within the borders

of the State of Wyoming.

In the case now relied on by the Crow Tribe, Lac

Courte Orelles Band v. Voight, 700 F.2d 341 (7th Cir.), cert.

denied, 464 U.S. 804 (1983), the treaty language in issue

recognized the right to hunt “until required to be

removed by the President of the United States.” The

Court determined that the treaty therefore granted only a

temporary hunting right, which could not be extin-

guished by implication but only by removal by the Presi-

dent. However, in the case at hand, the treaty gives a

temporary hunting right which may be extinguished

when the hunting districts no longer exist. On the admis-

sion of the State of Wyoming to the Union, the contin-

gency on which the treaty right could be extinguished -

the demise of hunting districts - was met.

E. This Case is One Most Appropriate for the

Application of Stare Decisis.

The Tenth Circuit properly applied stare decisis in

concluding that Race Horse must be followed. 73 F.3d at

994. Not only does this case involve material facts which

are indistinguishable from Race Horse, but the Tenth Cir-

cuit also properly concluded that “there is nothing to

indicate that Race Horse has been ‘overruled, repudiated

or disclaimed.’ ” Id.

The idea that courts are bound by precedent

embodies one of the basic principles of American juris-

prudence; it ensures that “the law will not merely change

erratically” and “permits society to presume that bedrock

principles are founded in the law rather than in the

proclivities of individuals.” Patterson v. McLean Credit

Union, 491 U.S. 164, 172 (1989), quoting, Vasquez v. Hillery,

474 U.S. 254, 265 (1986). From the 1800’s to the present,

this Court has recognized that courts must follow long-

established precedents. See, e.g., Commonwealth of Pennsyl-

vania v. Coxe, 4 U.S. 170, 191-192 (1880), to Quill Corp. v

North Dakota, 504 U.S. 298, __ 119 L.Ed.2d 91, 106-108,

112 S.Ct. 1904 (1992) and Seminole Tribe of Florida v. Flor-

ida, et al., Civ. No. 94-12, slip op. at 69 (U.S. March 27,

1996). Any departure from stare decisis demands “special

justification,” Patterson, 491 U.S. at 172, which has not

been shown here. Where the facts of a case are almost

identical to another, and the law remains the same, no

reason, special or otherwise, exists to avoid the applica-

tion of stare decisis.

Il. The Tenth Circuit’s Decision Is In Harmony with

Other Federal and State Courts.

As previously mentioned, this Court has relied on or

cited to Race Horse twenty times. (See discussion, supra,

text at n.2). Federal courts have cited to or relied on Race

Horse twenty-eight times.5 Race Horse has been relied on

5 Crow Tribe v. Repsis, 73 F.3d 982 (1995); Tsosie v. United

States, 11 Cl. Ct. 62, 73 (1986), aff'd, 825 F.2d 393 (Fed. Cir. 1987);

United States v. State Tax Comm'n of Mississippi, 541 F.2d 469, 470

(Sth Cir. 1976); United States v. Three Winchester 30-30 Caliber, 504

F.2d 1288, 1291 n.7 (7th Cir. 1974); Menominee Tribe of Indians v.

United States, 388 F.2d 998, 1003 (Ct.Cl. 1967), aff'd, in reliance on

Race Horse, 391 U.S. 404, 412 n.12 (1968); State of Arizona v.

Hobby, 221 F.2d 498, 500 n.11 (D.C. Cir. 1954); United States v.

Tulee, 110 F.2d 797, 800 (9th Cir. 1940) (distinguished); Crow Tribe

v. Repsis, 866 F.Supp. 520 (D.Wyo. 1994); Van Camp Sea Food Co. v.

Department of Nat'l Resources, 30 F.2d 111, 112 (S.D.Cal. 1929);

United States v. 2,271.29 Acres, 31 F.2d 617, 621 (D.Wis. 1928);

United States v. Karnuth, 24 F.2d 649, 652 (2d Cir. 1928), rev'd, on

grounds consistent with Race Horse, 279 U S. 231 (1929); United

States v. Thompson, 258 F. 257, 267 (E.D.Ark. 1919); United States

v. Samples, 258 F. 479, 481 (W.D.Mo. 1919), aff'd, Missouri v.

Holland, 252 U.S. 416 (1920); United States v. McCullagh, 221 F.

288, 293-94 (D.Kan. 1915); United States v. Sandoval, 198 F. 539,

552-3 (D.N.M. 1912), rev'd, on grounds consistent with Race

Horse, 231 U.S. 28, 38 (1913); McCabe v. Atchinson, T.& S.F. Ry.

Co., 186 F. 966, 969 (8th Cir. 1911), aff'd, in reliance on Race Horse,

235 U.S. 151, 159-60 (1914); Gearlds v. Johnson, 183 F. 611, 619-625

(D.Minn. 1911); United States v. United States Express Co., 180 F.

1006, 1011 (W.D. Ark. 1910), rev'd, 191 F. 673 (8th Cir. 1911);

United States v. Cardish, 145 F. 242, 245 (E.D.Wis. 1906);

AND tN et cl TOAST MOND 40 in Oa NR. at

eee

’

or cited by state supreme courts thirty-nine times® and

referenced in federal and state agency decisions nine

Wadsworth v. Boysen, 148 F. 771, 774 (8th Cir. 1906); People of

South Naknek v. Bristol Bay Borough, 466 F.Supp. 870, 878

(D.Alaska 1979); Weeks v. United States, 406 F.Supp. 1309, 1338

(W.D.Okl. 1975); United States v. Washington, 384 F.Supp. 312,

335-36 & 422 (W.D.Wash. 1974) (distinguished), aff'd, 520 F.2d

676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, reh’g denied, 424

U.S. 978 (1976), vacated, 443 U.S. 658 (1979); Confederated Tribes of

the Umatilla Indian Reservation, 262 F.Supp. 871, 872 (D.Ore.

1966) (explained); Organized Village of Kake v. Egan, 174 F.Supp.

500, 503 (D.Alaska 1959); Toomer v. Witzell, 73 F.Supp. 371, 377

(E.D.S.C. 1947), aff'd in relevant part, 334 U.S. 385 (1948); Makah

Indian Tribe v. McCauly, 39 F.Supp. 75, 78 (W.D.Wash. 1941)

(distinguished), rev'd, on ground consistent with Race Horse, 128

F.2d 867 (9th Cir. 1942); United States v. Brooks, 32 F.Supp. 422,

427-28 (N.D.Ind. 1940).

(Alaska 1961), aff'd, in reliance on Race Horse, 369 U.S. 60, 75

(1962); People v. McCovey, 685 P.2d 687, 697 (Cal. 1984)

(distinguished), cert. denied, 469 U.S. 1062 (1984); Pablo v. People,

46 P. 636, 637 (Colo. 1896); State v. McConville, 139 P.2d 485, 487

(Idaho 1943) (distinguished); People v. Chosa, 233 N.W. 205, 206

(Mich. 1930); State v. Starkweather, 7 N.W.2d 747, 748 (Minn.

1943); British-American Oil Prod. Co. v. Board of Equalization, 54

P.2d 129, 134 (Mont. 1936), aff'd, on grounds consistent with Race

Horse, 299 U.S. 159 (1936); Ex Parie Crosby, 149 P. 989, 991 (Nev.

1915); Kennedy v. Becker, 109 N.E. 116, 117 (N.Y. 1915), aff'd, in

reliance on Race Horse, 241 U.S. 556, 562 (1916); State v. Truax,

157 N.E. 792, 793 (Ohio 1927); Ex Parte Nowabbi, 61 P.2d 1139,

1155 (Okl. 1936); Underhill v. State, 237 P. 628, 630 (Okl. 1925);

Starks v. Joines, 223 P. 882, 886 (Okl. 1924); Huff v. State, 133 P.

265, 267 (Okl. 1913); Williams v. Johnson, 122 P. 485, 488 (Okl.

1912), aff'd, 239 U.S. 414 (1915); Smith v. Hepburn, 113 P. 932, 934

(Okl. 1911) (distinguished); Coyle v. Smith, 113 P. 944, 955 (Okl.

1911) (dissent) (explained), aff'd, in reliance on Race Horse, 221

U.S. 559, 573 & 576 (1911); Godfrey v. lowa Land & Trust Co., 95 P.

792, 800 (Okl. 1908); Higgins v. Brown, 94 P. 703, 727 (Okl. 1908);

times.” In total, Race Horse has been cited or relied on,

explained or distinguished, almost a hundred times.

Frantz v. Autry, 91 P. 193, 203 (Okl. 1907); MacCormick v.

Molinari, 16 P.P.R. 389, 403 (Puerto Rico 1910); Hollow Horn Bear

v. Jameson, 95 N.W.2d 181, 182 (S.D. 1959); Washington State

Commercial Passenger Fishing Vessel Ass’n v. Tollefson, 571 P.2d

1373, 1378 n.4 (Wash. 1977), vacated, on ground consistent with

Race Horse, 443 U.S. 658, 682 n.25 (1979); Anderson v. O’Brien, 524

P.2d 390, 402 (Wash. 1974) (dissenting opinion); Department of

Game v. Kautz, 422 P.2d 771, 773 (Wash. 1967), aff'd, on grounds

consistent with Race Horse, Puyallup I, 391 U.S. 392 (1968); State

v. McCoy, 387 P.2d 942, 944 (Wash. 1963); State v. Satiacum, 314

P.2d 400, 404-05 (Wash. 1957) (distinguished); State v. Tulee, 109

P.2d 280, 283 (Wash. 1941), rev'd, 315 U.S. 681 (1942); State v.

Wallahee, 255 P. 94, 95 (Wash. 1927); State v. Meninock, 197 P. 641,

642 (Wash. 1921); State v. Superior Court, 181 P. 688, 689 (Wash.

1919); State v. Towessnute, 154 P. 805, 809 (Wash. 1916); Sturdevant

v. State, 251 N.W.2d 50, 53 (Wis. 1977), cert. denied, 431 U.S. 970

(1977); State v. Gurnoe, 192 N.W.2d 892, 900 n.29 & 901 (Wis.

1972) (distinguished); State v. Sanapaw, 124 N.W.2d 41, 44 (Wis.

1963), cert. denied, 377 U.S. 991, reh’g denied, 379 U.S. 871 (1964);

State v. LaBarge, 291 N.W. 299, 300 (Wis. 1940); State v. Morrin,

117 N.W. 1006, 1006-07 (Wis. 1908); In re the General Adjudication

of All Rights to Use Water in the Big Horn River System, 753 P.2d

76, 97 & dissent at 133 (Wyo. 1988), cert. denied, 492 U.S. 926

(1989); Merrill v. Bishop, 287 P.2d 620, 623 (Wyo. 1955).

7 Northern States Power Co., 50 FPC 753, 762 n.3 (1973); 29

U.S. Op. Att’y Gen. 455, 461-62 (June 19, 1912); 71 Sol. Op. 469,

471 (I.D. No. 12, Dec. 1, 1964); 54 Sol. Op. 418, 420 (I.D. April 5,

1934); 53 Sol. Op. 349, 361 (I.D. April 15, 1931); 3 Wyo. Att’y

Gen. Op. 11, 14 (Feb. 26, 1973); Wyo. Att’y Gen. Op. 27, 28 (July

25, 1901); Wyo. Att’y Gen. Op. at 51 (Nov. 30, 1901); Wyo. Att’y

Gen. Op. 97, 98 (July 29, 1899).

Only a few courts have actually expressly criticized

the holding of Race Horse. These include the cases on

which the Crow Tribe primarily relies, as set forth below.

In State v. Arthur, the Nez Perce treaty contained

language providing a “right of taking fish at all usual and

accustomed places in common with citizens of the Terri-

tory,” and further “the privilege of hunting . . . upon

open and unclaimed lands.” 261 P.2d 135, 136 (Idaho

1953), cert. denied, 347 U.S. 937 (1954). The Idaho Supreme

Court first distinguished Race Horse by stating that the

rights of the Nez Perce were intended to be continuing

and could not be extinguished except by the appropriate

means, which did not include the admission of Idaho into

the Union. The Idaho Court nevertheless then criticizes

Race Horse by boldly stating that later opinions of the U.S.

Supreme Court indicate that the decision has not been

followed for this proposition. Id. at 139 (citing Winans,

Tulee, Dick, and others which interpret language unlike

the language at issue here). However, as previously

explained, this Court did not follow Race Horse in later

off-reservation hunting decisions because the rights

extended were continuing and not temporary. Thus, Race

Horse was not applicable to those cases.

8 Settler v. Lameer, 507 F.2d 231, 238-239 (9th Cir. 1974);

Holcomb v. Confederated Tribes of Umatilla Indian Reservation, 382

F.2d 1013, 1014 n.3 (9th Cir. 1967) (distinguished and then

questioned); United States v. Michigan, 471 F.Supp. 192, 268

(W.D. Mich. 1979), aff'd in part, 653 F.2d 277 (6th Cir.), cert.

denied, 454 U.S. 1124 (1981); State v. Arthur, 261 P.2d 135, 138-39

(Idaho 1953) (distinguished and then questioned); State v. Tinno,

497 P.2d 1386, 1392 n.6 & concurrence at 1395 (Idaho 1972); State

v. Jondreau, 185 N.W.2d 375, 378 (Mich. 1971).

The other cases on which the Crow Tribe relies,

involving the same treaty language as in issue here, are

also distinguishable for one reason or another. For exam-

ple, in State v. Tinno, the State of Idaho had stipulated

that the national forest in question was “unoccupied.”

497 P.2d 1386, 1391 (Idaho 1972). No such stipulation was

made here or in Race Horse. Based in part on this stipula-

tion, the Idaho Supreme Court interpreted the Bannock

treaty differently than this Court had in Race Horse. It

concluded that the right to hunt on “unoccupied lands of

the United States,” includes a right to fish on national

forest lands. Id.

Moreover, unlike the Race Horse Court, the Idaho

court failed to consider the word “unoccupied” in context

with the words “hunting districts.” Instead, the Tinno

court concluded that Race Horse had been “entirely dis-

credited” without it entering into the kind of thorough

discussion required under the rules of stare decisis or

when “entirely discrediting” a U.S. Supreme Court deci-

sion. See 497 P.2d at 1392 n.6. See also Crow Tribe, 73 F.3d at

994 n.6. Rather than rely on Race Horse, the Tinno court

relies extensively on State v. Arthur, which interpreted

treaty language entirely different than the language in

Tinno, Race Horse or the present case. 497 P.2d at 1392.

Finally, despite its discussion as to the hunting rights

of the tribe, the Idaho Supreme Court in Tinno ultimately

dismissed the appeal based on lack of jurisdiction. Id. at

1388. Thus, the entire weight of the decision is question-

able, as indicated by the Tenth Circuit. 73 F.3d at 994 n.6.

ded aecadioaeta

ee ee See te eT so

In State v. Cutler, the treaty language in issue was the

same language in issue in Race Horse. Nevertheless, the

Idaho Supreme Court did not discuss Race Horse, but

relied extensively on its prior Tinno decision. 708 P.2d

853, 856-57 (Idaho 1985). While the Cutler court deter-

mined that a state-owned wildlife reserve was not “unoc-

cupied,” it nevertheless concluded that the treaty rights

continued. Id. at 859. Again, the kind of analysis required

for discrediting a U.S. Supreme Court decision is not

contained in this case. Moreover, this case is distinguish-

able because the land in issue was not a federal national

forest, but state-owned land.

The other cases on which the Crow Tribe relies do not

involve the same or similar treaty language as the treaty

in issue in this case.? Because these cases do not involve

9 See People v. LeBlanc, 248 N.W.2d 199 (Mich. 1976) (to hunt

“until the land is required for settlement.”); State v. Miller, 689 P.2d

81 (Wash. 1984) (to hunt on “open and unclaimed lands.”); State v.

Stasso, 563 P.2d 562 (Mont. 1977) (hunting on “open and

unclaimed lands.” In addition, Montana’s Act of Admission

contained an exemption in favor of and for the benefit of the

Indians); United States v. Michigan, 471 F.Supp. 192 (W.D.Mich

1979), aff'd in part, 653 F.2d 277 (6th Cir.), cert. denied, 454 U.S.

1124 (1981) (aboriginal and treaty right to fish “on the lands ceded

with the other usual privileges of occupancy, until the lands is

required for settlement”); Lac Courte Orelles Band v. Voight, 700

F.2d 341 (7th Cir.), cert. denied, 464 U.S. 804 (1983) (the treaty

language in issue recognized the right to hunt “until required to

be removed by the President of the United States.”); Holcomb v.

Confederated Tribes of Umatilla Reservation, 382 F.2d 1013 (9th Cir.

1967) (treaty “privilege of hunting on unclaimed lands in common

with citizens.” This treaty, unlike the one in issue in this case,

was ratified after state’s admission); Settler v. Lameer, 507 F.2d

231 (9th Cir. 1974) (treaty reserved to the Indians “right of

interpretation of the same treaty language in question in

this case and Race Horse, they are not applicable to the

issue at hand.

III. The Tenth Circuit’s Alternate Holding that the Big

Horn National Forest Lands Are Occupied Was

Proper.

When the 1868 Crow treaty was executed, the federal

lands located in the Big Horn mountains were “unoc-

cupied.” Crow Tribe, 73 F.3d at 993. In 1897, the Big Horn

National Forest (BHNF) was created by Presidential Proc-

lamation, and then ratified by an Act of Congress. (Presi-

dential Proclamation, No. 30, 29 Stat. 909 (1897); Act of

June 4, 1897, ch. 2, 30 Stat. 34 (1897)).

In creating the BHNF, Congress expressly mandated

that the national forest be managed and regulated for the

specific purpose of improving and protecting the forest,

securing favorable water flows, and furnishing a contin-

uous supply of timber. 73 F.3d at 993, citing, 16 U.S.C.

§ 475. These lands were no longer available for settle-

ment, nor could anyone timber, mine, log, graze cattle, or

homestead without federal permission.?° Id., citing, Act of

June 4, 1897, ch. 2, 30 Stat. at 35-36 (1897).

taking fish at all usual and accustomed places, in common with

citizens of the Territory”) (emphasis added).

In both Ninth Circuit cases criticizing Race Horse, the courts’

criticism is contained primarily in footnotes, without any in-

depth discussion on why Race Horse should be discredited and

ignored. See Holcomb, 382 F.2d at 1014 n.3; Settler, 507 F.2d at 239

& n.10.

10 In 1960, Congress passed the Multiple-Use Sustained

Yield Act of 1960 which provided that “national forests are

= ll a we

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LaPierre cite iit SOTERA

A iO CS aT iil dE AI A Eee

As a result of the creation of the BHNF, Congress

carved out the “unoccupied” public lands for a specific

public use much like it carved out Yellowstone National

Park, so that the land became “occupied.” See Race Horse,

163 U.S. at 510. As this Court has stated, Congress’ power

to regulate and dispose of public property, by creating a

national forest reservation, such as the BHNF, is without

limitation. See Kleppe v. New Mexico, 426 U.S. 529, 539,

reh'g denied, 429 U.S. 873 (1976); Ivanhoe Irrig. Dist. v.

McCracken, 357 U.S. 275, 294-95 (1958)."!

The Crow Tribe relies on five cases in support of its

claim that the BHNF remains “unoccupied.” However,

these cases do not involve the issue of whether forest

lands are “occupied,” but whether they are in the “public

established and shall be administered for outdoor recreation,

range, timber, watershed, and wildlife and fish purposes,” as

well as the original purposes set forth in 16 U.S.C. § 475. 73 F.3d

at 993 n.4, citing, 16 U.S.C. § 528.

11 The Crow Tribe contends that the BHNF is “unoccupied”

because the Forest Service and Wyoming allow and encourage

hunting on those lands. (Petitioners’ S.Ct. Brief, at 24).

However, as required for timbering, mining, logging, and

grazing on national forest lands located in Wyoming, hunting is

only permitted on those lands in conjunction with federal and

state permission. Federal permission for hunting is regulated by

the State as delegated through a 1977 Memorandum of

Understanding with the Forest Service, and through various

conservation acts and regulations. See Multiple-Use, Sustained-

Yield Act of 1960 (MUSY), 16 U.S.C. §§ 528-31, at § 528; National

Forest Management Act of 1976 (NFMA), 16 U.S.C. §§ 1600-14,

at § 1604(a) & (g)(3)(A); Federal Land Policy and Management

Act (FLPMA), 43 U.S.C. §§ 1701-84, at § 1732(b); 36 C.F.R.

§ 241.2.

5 oe

domain” or “open and unclaimed.”12 For those reasons

alone, these cases are distinguishable.

IV. The Tenth Circuit Properly Determined that the

State’s Regulations were Reasonable and Neces-

sary for Conservation.

The Tenth Circuit found that even if the Treaty with

the Crow Tribe had reserved a continuing right which has

survived Wyoming’s admission into the Union, there was

ample evidence in the record to support the State’s con-

tention that its regulations were reasonable and necessary

for conservation. See 73 F.3d at 993.

12 Swim v. Bergland, 696 F.2d 712, 714, 716-17 (9th Cir. 1983)

(right to pasture livestock on the ceded “public land” so long as

it “remain part of the public domain”); Holcomb v. Confederated

Tribes of Umatilla Reservation, 382 F.2d 1013, 1014-15 (9th Cir.

1967) (court offers no reasoning why it considered forest lands

included within “unclaimed lands in common with citizens”);

State v. Miller, 689 P.2d 81, 82 n.2 (Wash. 1984) (court never

reached issue of whether “open and unclaimed” lands included

forest land reservations as State did not “dispute or question

this interpretation on appeal”; State v. Stasso, 563 P.2d 562,

564-65 (Mont. 1977) (court relied exclusively on State v. Tinno

and State v. Arthur to conclude that forest lands remain “open

and unclaimed”); State v. Arthur, 261 P.2d 135, 141 (Idaho 1953)

(forest lands are “open and unclaimed” since they were not settled

and occupied by whites under possessory rights or patent or

otherwise appropriated to private ownership).

But see United States v. Hicks, 587 F.Supp. 1162, 1166-67

(W.D.Wash. 1984) (national park lands were withdrawn for a

specific national use so that they are no longer “open and

unclaimed”).

Oe ee ee ee

In both its Complaint and Amended Complaint, the

Crow Tribe asserts an “unrestricted” treaty right to hunt

on BHNF. See also 73 F.3d at 998. As the Tenth Circuit

determined, there is ample evidence in the record to

show that unrestricted hunting would jeopardize the

wildlife populations in BHNF. The State determines the

number of big game animals that may be taken during

each hunting season in order to conserve the state’s wild-

life resources. The Crow Tribe has provided this Court

with misleading statements on elk and other big game

populations in the BHNF. While elk populations state-

wide may have increased, the big game populations on

the BHNF are limited. Consequently, the Wyoming Game

and Fish Department does not allow hunting of big horn

sheep, and limits the hunting of moose and elk in the

BHNF in order to maintain viable populations (J.A., at

270-273). Thus, the Court properly found that state regu-

lation is necessary and in this case is reasonable.

CONCLUSION

As the Tenth Circuit so succinctly states, “Race Horse

is alive and well,” and “[t]}here is nothing to indicate that

it has been ‘overruled, repudiated or disclaimed.’ ” 73

F.3d at 994. Race Horse is not a “blot” on this Court's

record, as the Crow Tribe contends. Rather, Race Horse is a

well-reasoned decision founded on bed-rock principles

enunciated repeatedly by this Court and others for over

one hundred years. Such overwhelming reliance surely

passes any “ink blot” test.

Based on the foregoing reasons, Respondents, Mr.

Repsis and Mr. Petera, ask the Court to deny Petitioners

Mr. Ten Bear’s and Crow Tribe’s request for writ of cer-

tiorari.

Respectfully submitted,

WiiuraMm U. Hi

Wyoming Attorney General

RON ARNOLD*

Senior Assistant Attorney General

Krist: T. SANSONETTI

Assistant Attorney General

123 Capitol Building

Cheyenne, Wyoming 82002

Telephone: (307) 777-7844

Counsel for Respondents

Chuck Repsis and Francis Petera

*Counsel of Record

No. 95-1560 '2 Supreme Court, U.S.

ieee E UD

In The MAY 15 1996

Supreme Court of the Unit

“ States, -..

October Term, 1995 —_—

CROW TRIBE OF INDIANS and

THOMAS L. TEN BEAR,

CHUCK REPSIS, individually; and

FRANCIS PETERA, individually,

Petitioners,

Respondents

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

. —

REPLY BRIEF OF PETITIONERS

Dace T. Wurre*

Rosert S. PELCYGER

Frepericxs, PeccyGer, Hester

& Wuitre LLC

1881 9th Street, Suite 216

Boulder, Colorado 80302

Telephone: (303) 443-1683

Counsel for Petitioner

Crow Tribe of Indians

Bruce P. BADLE

Baptey & Rasmussen, P.C.

P.O. Box 648

Sheridan, Wyoming 82801

Telephone: (307) 672-5878

Counsel for Thomas L. Ten Bear

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 42-283)

Sp oom

REPLY BRIEF

OF PETITIONERS

Pursuant to Sup. Ct. Rule 15.6, Petitioners, Crow Tribe

of Indians and Thomas L. Ten Bear, file this Reply Brief to

the Brief in Opposition to Petition For a Writ of Certiorari

filed by Respondents. The arguments presented below will be

confined to new points raised in the Brief in Opposition.

I. ARGUMENT

A. THE PETITIONERS NO LONGER CONTEND THAT

THEIR OFF-RESERVATION HUNTING RIGHTS ARE

UNRESTRICTED.

Respondents contend that the Petitioners have “misstated” the

nature of the hunting right being asserted. Brief in Opposition, p. 5.

The Complaint and Amended Complaint referred to an “unre-

stricted” hunting right. In subsequent briefs submitted to lower

courts, however, the Petitioners acknowledged that the off-reserva-

tion Treaty hunting right in Article 4 of the 1868 Crow Treaty may

be regulated by the State of Wyoming under the conservation

standard enunciated by this Court.! See, Puyallup Tribe v. Depart-

ment of Game, 391 U.S. 392 (1968); Department of Game v.

Puyallup Tribe, 414 U.S. 44 (1973); Puyallup Tribe v. Department

of Game, 433 U.S. 165, 175-76 (1977); and Washington v. Wash-

ington Fishing Vessel Ass'n, 433 U.S. 658 (1977). Pursuant to Fed.

R. Civ. P. 15(b), this acknowledgement resulted in an amendment

to conform to the evidence.

B. THE WARD vy. RACE HORSE DECISION CANNOT BE

SUSTAINED BY REFERENCE TO ITS INTERPRETA-

TION OF THE TREATY TERMS “HUNTING DIS-

TRICTS”.

Respondents’ reliance on this Court’s reference to the

“hunting districts” language in Article 4 of the Fort Bridger

' Joint Appendix, 10th Cir. at 531, 544-46; 10th Cir. Brief of

Appellants, pp. 31-34; 10th Cir. Reply Brief at pp. 1-2.

Treaty in Ward v. Race Horse, 163 U.S. 504 (1896), requires

clarification. See Brief in Opposition, pp. 3-4. In the context

of Article 4, the plain meaning of the term “hunting districts”

is obvious. It refers to the areas outside of the boundaries of

the 1868 Reservation on which tribal members hunted at the

time of the Treaty. As this Court noted in Ward v. Race Horse,

163 U.S. at 508, in the absence of that term, the hunting right

reserved in Article 4 could be construed as applying to all

unoccupied lands of the United States, wherever located.

Neither the term “hunting districts” nor the clause in which it

is found, “so long as peace subsists on the borders of the

hunting districts,” can plausibly be read as manifesting a

mutual intent to terminate the off-reservation hunting right

when a future state encompassing the hunting districts was

admitted to the Union.

C. NO DECISIONS OF THIS COURT MAKE THE DIS-

TINCTION BETWEEN “TEMPORARY AND PRE-

CARIOUS” TREATY RIGHTS AND

“CONTINUOUS” TREATY RIGHTS.

Contrary to the Respondents’ numerous misstatements,

the difference between “temporary and precarious” treaty

rights and “continuous” treaty rights employed by the Tenth

Circuit was never previously applied by this or any other

court. As Petitioners pointed out, the Seventh Circuit in Lac

Courte Oreilles Band v. Voigt, 700 F.2d 341 (7th Cir.), cert.

denied, 464 U.S. 805 (1983), expressly rejected this argu-

ment. No decision of this Court relies on that difference to

distinguish Race Horse from other provisions reserving off-

reservation hunting rights.

The Crow Tribe’s Article 4 treaty right is “conditional,”

but the right exists until one of the specified conditions is

2 Respondents continue to rely upon “silence” in the Wyoming

Admission Act, Brief in Opposition at p. 3, when in fact that Act ratified

the Wyoming Constitution which contains an express disclaimer of

jurisdiction over Indian lands. This Court erred in Race Horse by failing to

take account of this disclaimer and its ratification by Congress.

satisfied: (1) so long as game may be found; (2) so long as

peace subsists among the whites and Indians on the borders of

hunting districts; and (3) so long as the lands are “unoc-

cupied.” Today, it is undisputed that there is game within the

Big Horn National Forest, that there is peace, that hunting is

permitted on the national forest lands, that they are not

occupied, and that the forest lands are within the Crow

Tribe's aboriginal hunting areas. None of these three condi-

tions has anything to do with either the admission of a future

state to the Union or the equal footing doctrine.

D. THE U.S. SUPREME COURT HAS NOT CITED

RACE HORSE FOR ITS HOLDING THAT THE

ADMISSION OF A STATE REPEALS INDIAN

HUNTING RIGHTS.

Respondents assert that Race Horse has been “relied on

or cited” by this Court twenty times, showing its continued

vitality. Brief in Opposition, pp. 16-22. This Court has cited

Race Horse over the years, however, it has not “relied” on the

holding in that decision in any sense. Since 1962, Race Horse

has been cited six times. Three citations are for the general

proposition that off-reservation activities are generally sub-

ject to state regulation.4 The Fishing Vessel Ass'n decision

cites Race Horse for the rule that treaty fishing rights are

immune from state regulation “save that required for conser-

vation.” 443 U.S. at 682 n.25. The most recent reference,

Oregon Wildlife Department v. Klamath Tribe, 473 U.S. 753,

3 Oregon Wildlife Dept. v. Klamath Tribe, 473 U.S. 753, 773 n.23

(1982); State of Washington v. Confederated Tribes of the Colville Indian

Reservation, 447 U.S. 134, 179 (1980) (Rehnquist concurrence and

dissent), reh’g denied, 448 U.S. 911 (1980); Washington v. Fishing Vessel

Ass'n, 443 U.S. 658, 682 n.25 (1979); Mescalero Apache Tribe v. Jones,

411 U.S. 145, 149 (1973); Menominee Tribe of Indians v. United States,

391 U.S. 404, 412 n.12 (1968); and Organized Village of Kake v. Egan, 369

U.S. 60, 75 (1962).

4 Organized Village of Kake, Mescalero Apache. Tribe and

Confederated Tribes of Colville, supra.

773 n.23 (1985), cites Race Horse as a “Cf.,” as an instance

where Congress was found to have ended “special rights” of a

tribe outside its reservation. In Klamath, there was no treaty

right to hunt or fish off-reservation. See 473 U.S. at 769 n.20

(distinguishing Winans because “the cession agreement in

Winans expressly preserved the right to fish on nonreservation

lands”). Where such rights are preserved by treaty (as in

Winans and in this case), they do not provide “absolute

freedom from state regulation on nonreservation lands,” but

nevertheless confer “special . . . rights that are independent of

any ownership of land.” /d. at 765-66 and nn.16 and 17. Thus,

Klamath reaffirms this Court’s settled doctrine that express

off-reservation rights confer immunity from those state laws

that are not necessary for conservation, and provides no

support for the state’s assertion that Race Horse stands for a

contrary reading of the Fort Bridger Treaty.5

E. THERE IS NO MEANINGFUL DIFFERENCE

BETWEEN “OPEN AND UNCLAIMED” LANDS

AND “UNOCCUPIED LANDS”.

Respondents attempt to distinguish between the cases inter-

preting treaty language reserving the right to hunt on “public

domain,” “open and unclaimed” and “unclaimed” lands. Brief in

Opposition, pp. 24-25. If anything, the Crow Tribe’s Article 4

provision reserving the right to hunt on “unoccupied lands” of the

United States presents a stronger case. In Holcomb, Miller, Stasso

and Arthur, the courts held that national forest acts did not make

the forest lands “claimed” meaning that they were subject to

homestead patents or other assertions of ownership claims by

* With the possible exception of State v. McCoy, 387 P.2d 942, 944

(Wash. 1963), none of the state and lower federal court decisions follows

the Race Horse holding that the admission of a state terminates off-

reservation treaty hunting and fishing rights. Certainly none of these

decisions supports the Tenth Circuit’s distinction between “temporary” and

“continuing” treaty rights. The fact remains that the Tenth Circuit deviated

from decisions of state supreme courts and federal courts of appeal.

as ° , -

certainly are not “occupied.” “Occupancy” is clearly a step beyond

a mere claim of ownership. There are therefore clear conflicts both

between the circuits and between the Tenth Circuit and the state

supreme courts regarding the issue of whether Indian off-reserva-

tion treaty rights apply to lands within national forests.

CONCLUSION

Respondents state in their Brief in Opposition that this

case is “deja vu all over again.”’ It is not. The facts in these

two cases, separated by 100 years may be similar, but the

legal landscape has changed dramatically. For these reasons

the petition should be granted.

Respectfully submitted,

Dace T. Wuite*

Rosert S. PELCYGER

FREDERICKS, PELCYGER, HESTER

& Wuite

1881 9th Street, Suite 216

Boulder, Colorado 80302

Telephone: (303) 443-1683

Counsel for Petitioner

Crow Tribe of Indians

Bruce P. BapLey

Baptey & Rasmussen, P.C.

P.O. Box 648

Sheridan, Wyoming 82801

Telephone: (307) 672-5878

Counsel for Thomas L. Ten Bear

*Counsel of Record

F.2d 1013 (9th Cir. 1967); State v. Miller, 689 P.2d 81 (Wash. 1984); State v.

Stasso, 563 P.2d 562 (Mont. 1977); and State v. Arthur, 261 P:2d 135 (Idaho

1953), cert. denied, 347 U.S. 937 (1954).

’? Brief in Opposition, p. 1.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.