Amicus Curiae Brief — Shook v. Montana

“7 +. ~ 3S

(>) JUL 2 8 2003

OFFICE OF

No. 02-1658 OF THE CLERK

In The

Supreme Court of the Anited States

¢

SANDRA SHOOK,

Petitioner,

v.

STATE OF MONTANA,

Respondent.

ry

Vv

On Petition For Writ Of Certiorari

To The Supreme Court Of The

State Of Montana

¢

BRIEF AMICUS CURIAE OF THE

CONFEDERATED SALISH AND KOOTENAI TRIBES

IN SUPPORT OF RESPONDENT

4

JOHN B. CARTER

TRIBAL LEGAL DEPARTMENT

CONFEDERATED SALISH AND

KOOTENAI TRIBES

Post Office Box 278

Highway 93 North

Pablo, Montana 59855-0278

(406) 675-2700; Fax: 675-4665

Attorney for Amicus Curiae

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

The Confederated Salish and Kootenai Tribes note

that the QUESTIONS PRESENTED in the Petition (Pet.

at i) are based upon misstatements of fact and law and

restyle them as follows: ~

1. Is a Montana state hunting regulation that

prohibits all persons who are not enrolled members of an

Indian tribe, Indian and non-Indian alike, from hunting on

that Tribe’s Indian Reservation based upon a political or a

racial classification?

2. Is big game hunting under Montana law a privi-

lege, the regulation of which is subject to a rational basis

test, or a right, the regulation of which is subject to strict

scrutiny?

Petitioner:

Respondent:

oe

Amicus Curiae:

ii

LIST QF PARTIES

Ms. Sandra Shook was Defendant in the

District Court of the Twentieth Judicial

District of the State of Montana, in and

for the County of Sanders, and Appellant

before the Supreme Court of the State of

Montana.

The State of Montana was Plaintiff in the

District Court of the Twentieth Judicial

District of the State of Montana, in and

for the County of Sanders, and Respon-

dent before the Supreme Court of the

State of Montana.

The Confederated Salish and Kootenai

Tribes of the Flathead Indian Reserva-

tien, Montana. The Confederated Salish

and Kootenai Tribes were not a party at

the District Court of the Twentieth Judi-

cial District of the State of Montana, in

and for the County of Sanders, but were

Amicus Curiae before the Supreme Court

of the State of Montana.

\

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.................0cccccocessareccoveoes i

Re SE BUMPER sacs scsasssscosssnsvavesovencosssoces siiinbiieincibie ii

PE PE GPE ERET ED vss vescivoncssrvesssecovevcescosvouseeesess iii

I SPE BOE? RRO UNE EAI nnsncscsccsssvcessvneneseiosesscesscs iv

INTERESTS OF THE CONFEDERATED SALISH

BADPRF TAPPER MIUAAL TF RMIB IGS ooo cccssecccsessccceccsscesesesenens 1

i IIIT. scsncacvendinadddanensuxheeyacedsuorsacenoese 1

2. The Confederated Salish and Kootenai Tribes....... 2

3. Relations Between Montana and the CSKT ....... 3

REASONS TO DENY CERTIORARI ........................ 4

I. THERE IS NO CONFLICT BETWEEN THE

DECISION OF THE MONTANA SUPREME

COURT AND THE DECISIONS OF THIS

A. THE MONTANA SUPREME COURT

DECISION IS IN HARMONY WITH

DECISIONS OF THIS COURT HOLD-

ING THAT MEMBERSHIP IN AN IN-

DIAN TRIBE IS A POLITICAL, NOT

RACIAL, CLASSIFICATION .................... 4

B. PETITIONER MISAPPREHENDS THE

CONSTITUTIONAL STATUS OF A_-

NT iit sieheieniessncbervnsksaxtenieonsiiaibs 11

C. THE MONTANA SUPREME COURT

PROPERLY UPHELD ITS SOLEMN

OBLIGATION TO FOLLOW FEDERAL

EN ceili a isidsipbdebibessiensesssientasisiaselecsenenes 13

iv

TABLE OF CONTENTS -— Continued

Page

II. THERE IS NO CONFLICT BETWEEN THE

MONTANA SUPREME COURT DECISION

AND THE NINTH CIRCUIT COURT OF

APPEALS DECISION IN WILLIAMS uv.

‘

v

TABLE OF AUTHORITIES

: Page

CASES

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

RID ic:svisssoeiinacuicicsdniclahianslestunsiiwaplccinatiamiean eacaek cee ei a 8,9

Arizona v. San Carlos Apache Tribe, 463 U.S. 545

CRIs biscoscstincieniieesisbaacabbantaeaee aon 14

Baldwin v. Fish and Game Commission of Mon-

Searias, SO Ge, ee 6 ict edtetc edeorece 11, 12

Chevron U.S.A., Inc. v. Natural Resources Defense

Council, ine. , 467 UB. BST CIGBE) «. cccccccccescecacssossecosssess 15

City of Richmond v. J.A. Croson Co., 488 U.S. 469

CA sicchcieicinacentideadnees es celiac tat dcscek 9

Confederated Salish and Kootenai Tribes v. State of

Montana, 750 F.Supp. 446 (D. Mont. 1990).............0000... 6

Minnesota v. Mille Lacs Band of Chippewa Indians,

BER Gs Fi RRR Ronn epee nears Mesa. bom: 9,12, 15

Morton v. Mancari, 417 U.S. 535 (1974)... PART passim

Nofire v. United States, 164 U.S. 657 (1897)................00006 7

Rice v. Cayetano, 528 U.S. 495 (2000) ........... cc. eeeeeeee 7,8,9

Shalala v. Illinois Council on Long Term Care, Inc.,

ee Gs. 2A I A ptasciecaciaabeatacthaenaenaet iia 9

State v. McClure, 127 Mont. 534, 268 P.2d 629

6 ITEP sceiessisdcennics-asisseeiscssddlvaitis cabsseartinsacasucauiimmanle iaclasiaca ian aanan Aen 12

United States v. Antelope, 430 U.S. 641 (1977)....... 6, 7, 8,9

Washington v. Confederated Bands and Tribes of

the Yakima Indian Nation, 439 U.S. 463 (1979)............ 13

vi

TABLE OF AUTHORITIES — Continued

Page

Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997),

cert. denied, 523 U.S. 1117 (1998)................00cceeseees 15, 16

Worcester v. Georgia, 31 U.S. 515 (1882)... eeeeeseeeeees 9

CONSTITUTIONS

Confederated Salish and Kootenai Tribes Const. .............. 2

SE COE: OE. TES © ninckiiicininsciacsnampcamnnaiianenes ww 14

57 CORI, IEF vicccnentiecsitninseemeeicmmanminanions 6

ee Be 8 5 Rete omens 4,11

UB. Comat... SNGIG, FEY sevsvicnveenssicesernansnanessens saiitnibheinianiaiep 7

U.S. Const. art. IV, § 2... .eeseeeseeeseeees Lccniaadhiadunaariaaatiin 11

C7, Ce, OE: Fi, Gh Bincsceciecsetncesness siigananicaiades ee Same 3

STATUTES

American Indian Religious Freedom Act, 42 U.S.C.

$1996 ..........rerecsssssssecsserenesesssssnsssssssncensnsesensosscssssnsenensanes 5

Clean Air Act, 42 U.S.C. §7601(G)..........sssssssscssssrencsenssseseres 5

Federal Insecticide, Fungicide, and Rodenticide

Bile, Fs GEOR teinenicseigisninntyniiitinddaciinaiiasinnia 5

Federal Land Policy and Management Act of 1976,

BD TFB BE Fi i ixeninniceciccsanicteanovaincasaennncniniiiiaiieinaiinnas 5

Federal Water Pollution Control Act, 33 U.S.C.

BEET cistinndinsnenanssesieginnnieinn sammie mteuiadiatiietsinlcawibniniienatis 5

Food, Agriculture, Conservation, and Trade Act of

TOO, FT AAs. Fe rin sissssussiatinstniprcaciiiantatnnnenannians 5

Indian Crimes Act of 1976, 18 U.S.C. §1151 ........... 5

Vii

TABLE OF AUTHORITIES -— Continued

Page

indian Major Crimes Act of 1976, 18 U.S.C. §1153............ 6

Indian Reorganization Act of 1934, 25 U.S.C. §461,

ie I: «stig ediBiuinsaieniien sarsicceninesenscshinaalanibabiliceaetaeedabbétibacaatindiasin 2

Internal Revenue Cede, 26 U.S.C. §38(b)(10) .............06.. coun

Judiciary and Judicial Procedure, 28 U.S.C. §1353........... 5

Judiciary and Judicial Procedure, 28 U.S.C. §1360........... 5

Judiciary and Judicial Procedure, 28 U.S.C. §1362........... 5

Lacey Act Amendments of 1981, 16 U.S.C.

i i 5

National Housing Act, 12 U.S.C. §1715z-13(a) .................. 5

Reindeer Industry Act, 25 U.S.C. §500.........ccccc eee ceeeeee 15

Surface Mining Control and Reclamation Act of

BE 5 ats GR ciciicasitinsitinsnertonincaenunnmnaalanietebinns

Violent Crime Control and Law Enforcement Act of

Ss. Se TI isicicccainsainitatebienaasaaiilianbicd isda

TREATIES

Treaty of Heligate, July 16, 1855, 12 Stat. 975.0000...

OTHER AUTHORITY

Tribal Government Today, Politics on Montana

Indian Reservations, Revised Edition, University

of Colorado Prees (1908) .............cccccsccccoccosssssssnseceres caaaned

1

INTERESTS OF THE CONFEDERATED

SALISH AND KOOTENAI TRIBES’

1. The Controversy

Petitioner Shook intentionally violated a _ long-

standing State of Montana big game hunting regulation

that prohibits all persons who are not enrolled members of

a particular Indian tribe from hunting big game on that

Tribes’ Indian Reservation. Shook, who does not claim

membership in any Indian tribe, knowingly violated that

rational state regulation on the Flathead Indian Reserva-

tion, the homeland of the amicus Confederated Salish and

Kootenai Tribes (“CSKT”). Pet. App. 3,15.” As applied, the

Montana regulation prohibits all persons who are not

enrolled members of the CSKT from hunting big game on

the Flathead Indian Reservation. The state regulation is

based on a political distinction: membership in the CSKT.

The regulation simply prohibits “hunting by non-tribal

members on reservations.” Pet. App. 8. Petitioner, who is

not an Indian, was treated identically to Indians enrolled

in other tribes and to non-Indians who illegally hunt big

game under Montana law on the Flathead Indian Reserva-

tion.

‘ Letters from counsel for both parties consenting to this amicus

brief are appended to this brief. No counsel for any party authored any

part of this brief. No person or entity other than the amicus Tribes

made any monetary contribution to the preparation and submission of

this brief.

? The Petition shall be referred to as “Pet.” and the Appendix to the

Petition shall be referred to as “Pet. App.”

2

2. The Confederated Salish and Kootenai Tribes

The CSKT are a federally-recognized confederation of

American Indian tribes organized pursuant to the Indian

Reorganization Act of 1934, 25 U.S.C. §461, et seq. (“IRA”).

The Salish and Kootenai people have inhabited western

Montana from time immemorial. On July 16, 1855 the

CSKT and the United States, acting through Territorial

Governor Issac I. Stevens, executed the Treaty of Hellgate,

12 Stat. 975. That Treaty reserved to the CSKT the 1.25

million acre Flathead Indian Reservation as an exclusive

Tribal homeland and ceded to the United States millions of

acres of CSKT aboriginal territory.

Two issues of federal Indian law are central to this

Petition. First, under Article III of the Hellgate Treaty, the

CSKT reserved in perpetuity certain hunting and fishing

rights and privileges on and off of the Reservation. The

Tribes expressly reserved the exclusive right to fish in all

streams running through and bordering the Reservation,

as well as off-reservation fishing privileges. The Tribes by

implication also reserved the right to hunt within the

Reservation, as well as the expressly reserved privilege to

hunt off of the Reservation. Pet. App. 34.

The second significant federal Indian law issue is the

political status of Tribal membership. Prior to the IRA,

CSKT enrollment criteria were not codified. Under the

CSKT Constitution, approved by the Secretary of Interior

under the IRA in 1935, the Tribal government codified

enrollment standards. CSKT enrollment criteria have

varied dver time. For example, for extensive periods of

time there was no requirement for any particular blood

quantum. Enrollment by adoption into the CSKT has

always been an option. Of two persons who are identical

3

lineal descendants of one person, one may be an enrolled

member and the other not. Although the fundamental

issue of the Petition is whether membership in an Indian

tribe is a race or blood quantum issue, Petitioner failed to

establish any record on this issue regarding the CSKT or

any other tribe in Montana.

3. Relations Between Montana and the CSKT

The State of Montana did not exist at the time of the

Hellgate Treaty, is not a signatory to the Treaty, but is

nevertheless bound to uphold it under the Supremacy

Clause of the U.S. Const. art. VI, cl. 2. Montana has no

trust-or fiduciary relationship with the CSKT akin to that

incumbent on the United States. However, as a matter of

Montana and federal law, Montana is under a solemn

obligation to follow federal law when state action has the

potential to impact federal Treaty-reserved interests.

The CSKT and the State of Montana interact on a

government-to-government basis, reaching accommodation

when possible and in accordance with federal law. Regula-

tion of hunting and fishing on the Flathead Indian Reser-

vation is one of the issues over which Montana and the

CSKT have achieved a lasting resolution; a resolution that

is consistent with federal, Montana and CSKT law. See

Pet. App. 11-13. One manifestation of that resolution is

represented by the Montana big game hunting regulation

that Shook intentionally violated. That regulation paral-

lels and complements a similar long-standing CSKT law,

which is not of record in this matter. Application of both

the CSKT and the Montana hunting regulations is based

on the political status of the person to be regulated, i.e.,

4

whether the person to be regulated is an enrolled member

of the CSKT.

.

vy

REASONS TO DENY CERTIORARI ’

I. THERE IS NO CONFLICT BETWEEN THE

DECISION OF THE MONTANA SUPREME

COURT AND THE DECISIONS OF THIS COURT

A. THE MONTANA SUPREME COURT DECI-

SION IS IN HARMONY WITH DECISIONS

OF THIS COURT HOLDING THAT MEM-

BERSHIP IN AN INDIAN TRIBE IS A PO-

LITICAL, NOT RACIAL, CLASSIFICATION

When boiled down to the basics, Petitioner argues

that a state hunting regulation that treats enrolled mem-

bers of an Indian tribe differently from all persons who are

not enrolled members is race-based and therefore violates

the Equal Protection Clause of the 14th Amendment of the

United States Constitution. Her challenge is based on a

faulty foundation.

It is settled law that membership in an Indian tribe

constitutes a political, not racial, classification. In Morton

v. Mancari, 417 U.S. 535 (1974), the Court evaluated a

similar challenge to federal Indian preference hiring

practices and found that:

Literally every piece of legislation dealing with

Indian tribes and reservations, and certainly all

legislation dealing with the BIA, single out for

special treatment a constituency of tribal Indians

living on or near reservations. If these laws, de-

rived from historical relationships and explicitly

5

designed to help only Indians, were deemed in-

vidious racial discrimination, an entire Title of

the United States Code [four-volume Title 25, en-

titled “Indians”] would be effectively erased and

the solemn commitment of the Government to-

ward the Indians would be jeopardized.

* * *

Contrary to the characterization made by appel-

lees, this preference does not constitute ‘racial

discrimination.’ Indeed, it is not even a ‘racial*

preference.

Morton at 552-553."

The Morton Court concluded that preferential treat-

ment is aimed at “Indians not as a discrete racial group,

but, rather, as members of quasi-sovereign tribal entities.”

Id. at 554. In other words, it is a political, not racial,

classification. Under Morton, the proper analysis of the

challenged Montana regulation is to inquire whether the

treatment is “reasonably and directly related to a legiti-

mate, nonracially based goal.” Jd. at 554. The Montana

* Congressional treatment of Tribes as political entities is codified

in numerous other Titles of the United States Code as well. See, for

example, 7 U.S.C. §136u (Tribal enforcement of pesticide control), 7

U.S.C. §5930 (agriculture), 12 U.S.C. §1715z-13(a) (housing), 16 U.S.C.

§3372(a\1) (federal enforcement of Tribal hunting and fishing laws), 18

U.S.C. §1151 (“Indian Country” defined), 18 U.S.C. §1165 (federal

offense to violate Tribal hunting and fishing laws), 26 U.S.C. §38(b)(10)

(employment credits), 28 U.S.C. §§1353, 1360 and 1362 (Federal Court

jurisdiction over various Indian issues), 30 U.S.C. §1235(k) (treating

Tribes as states for coal mining activities), 33 U.S.C. §1377 (treating

Tribes as states under the Clean Water Act), 42 U.S.C. §1996 (religious

freedom), 42 U.S.C. §7601(d) (treating Tribes as states under the Clean

Air Act) and 43 U.S.C. §1712 (public land management).

a aaa aa ee

ee

6

Supreme Court (Shook) applied this “rational basis” test

and identified several legitimate State interests that the

regulation serves, including protection of harvestable

herds (Pet. App. 8), compliance with Montana’s law and

Constitution (/d.), and deference to the settlement of

Confederated Salish and Kootenai Tribes v. State of Mon-

_tana, 750 F.Supp. 446, 451 (D. Mont. 1990) (enjoining the

application of Montana’s fishing regulations on portions of

the Flathead Reservation). Pet. App. 12-13.

This Court affirmed the Morton political analysis in a

criminal law context in United States v. Antelope, 430 U.S.

641 (1977), a due process and equal protection case arising

under the 5th Amendment. In Antelope, an Indian was

tried criminally under 18 U.S.C. §1153, a statute that only

applies to Indians. The analogous state criminal statute

did not provide as harsh a penalty as did the federal

statute. An Indian defendant challenged his conviction

under the federal law, claiming that a non-Indian charged

with precisely the same offense would have received a

lighter penalty and therefore he was the victim of imper-

missible invidious racial discrimination. Jd. at 644. This

Court disagreed, finding that:

The decisions of this Court leave no doubt that

federal legislation with respect to Indian tribes,

although relating to Indians as such, is not based

upon impermissible racial classifications. Quite

the contrary, classifications expressly singling

out Indian tribes as subjects of legislation are

expressly provided for in the Constitution and

supported by the ensuing history of the Federal

Government’s relations with Indians.

* eo. *

7

Legislation with respect to these ‘unique aggre-

gations’ has repeatedly been sustained by this

Court against claims of unlawful racial discrimi-

nation.

Id. at 645 (footnote omitted). As with Morton, the Antelope

Court concluded that differential treatment of Indians and

non-Indians “is not based upon impermissible classifica-

tions. Rather, such regulation is rooted in the unique

status of Indians as ‘a separate people’ with their own

political institutions.” Id. at 646.“

Morton and Antelope are Indian law cases. Each

expressly found a law like Montana’s hunting regulation to

be based on a permissible political classification and

therefore reviewable under a “rational basis” test. Peti-

tioner invites this Court to ignore the law of the case and

look instead to several equal protection cases that do not

arise in an Indian law context.

For example, Petitioner asserts that Rice v. Cayetano,

528 U.S. 495 (2000), a 15th Amendment voting rights case,

should control here. Rice found that a Hawaii state statute

that treated “native Hawaiians” differently from other

people for certain voting purposes violated the 15th

Amendment of the Constitution by creating an impermis-

sible race-based voting class. Jd. at 517. Hawaii sought

protection under the Morton political classification, but

* The political nature of being an Indian and of Tribal membership

is nowhere clearer than in Nofire v. United States, 164 U.S. 657 (1897),

where a person with no genetic connection to any tribe was treated

under Cherokee tribal law and federal criminal law as an Indian

because he satisfied the requirements for tribal membership and was

therefore legally an Indian.

a

8

the Rice Court declined to “extend the limited exception [of |

Mancari] to a new and larger dimension.” Jd. at 520. The |

Court clearly distinguished the historical and legal rela- ©

tionship of the United States and Indian Tribes as gov- |

ernments from its relationship with Hawaiians who lack

federally recognized governmental status. In so doing, it

focused on Tribal political status and treaty rights. Rice at

519-520. Quoting Morton, the Rice Court expressly reaf-

firmed the political classification of Indian tribes, noting

that “the Court found it important that the preference was

not directed towards a racial group consisting of Indians,

but rather only to members of federally recognized tribes

... the preference [was] political rather than racial in |

nature.” Id. at 519-520 (citations and quotations omitted).

That is the case here, too. If Ms. Shook were enrolled in ©

the CSKT, she would not be prosecuted by Montana. If she

were enrolled in another tribe, she would receive the same

treatment she received as a non-Indian.

Rice, the very case Petitioner relies on in her attempt

to overrule Morton, actually confirms that Morton is the

law of this case. Therefore, the Montana regulation is

subject only to a reasonable and rational basis test, not

strict scrutiny. Rice at 520. That is the standard of review

the Shook Court employed. Pet. App. 6, 8.

Petitioner also relies upon Adarand Constructors, Inc.

v. Pena, 515 U.S. 200 (1995), another case that does not

involve Indian law, to implicitly overrule the Morton and

‘Antelope decisions. The only substantive discussion of the

special field of Indian law jin Adarand occurs in the dissent

of Justices Stevens and Ginsburg, where the Justices,

citing Morton, note that the Federal Government has

provided politically-based preference to Indians since the

early part of the 19th century. Adarand at 244, note 3.

eee

9

This Court has been loath to find its decisions overruled

sub silentio. Shalala v. Illinois Council on Long Term

Care, Inc., 529 U.S. 1, 18 (1999). Notably, neither Adarand

nor Rice expressly do so.

While Adarand does not overrule Morton and Ante-

lope, it is instructive on several points. First, it counsels

adherence to the doctrine of stare decisis. Deviation from

stare decisis requires “special justification” and is “not a

mechanical formula of adherence to the latest decision.”

Adarand at 231. Stare decisis applies here because all

federal-tribal and all state-tribal relationships are based

upon the long-standing decisions of this Court, reaching

back to Worcester v. Georgia, 31 U.S. 515 (1832) (Tribes as

distinct political entities) and forward to Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 207-

208 (1999) (treaty rights survive statehood and state laws

must accommodate them). Furthermore, as discussed in

Morton, supra, much of the United States Code is based

upon the special political status of Indians manifest in the

decisions of this Court. The more recent decisions in

Adarand and Rice either affirm or-are silent on the last

two hundred years of this specialized Indian jurisprudence

and legislation. Similarly, Petitioner’s reliance on City of

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (a case

that never discusses Morton) to implicitly overrule Morton

on the standard of review fails for two reasons; stare

decisis, and the principle that overruling by implication is

disfavored.

Second, Adarand makes clear that a thorough exposi-

tion of the facts is essential for a “strict scrutiny” analysis.

Id. at 236. Petitioner has built no factual record on the

issue critical to her claim — tribal enrollment standards.

Instead, she went to trial on a set of stipulated facts (Pet.

10

App. 3) that did not address enrollment criteria of the

CSKT or any other Tribe in the United States. As a result,

this case is not properly before the Court.

In an effort to create a record for this Court after the

trial and appeal, Petitioner asserts that “membership for

each one of the eleven Indian tribes that reside on reserva-

tions in Montana requires a certain blood quantum.” Pet.

13. She asserts this without citation to the record of this

case, for no such record exists.” In an effort-to fabricate a

record on the alleged racial nature of tribal enrollment,

Petitioner asks this Court to visit the web site “for each

tribe.” Pet. 13, note 5. She then lists sites for six Tribal

governments. However, there are seven federally-

recognized Tribal governments in Montana with seven

different sets of enrollment criteria, all of which have

changed over time. Each Tribe treats enrollment differ-

ently. The point is, Petitioner simply failed to develop a

record to support her claim. She asks for strict scrutiny,

but failed to provide any actual evidence for any court to

scrutinize. Accordingly, she has failed to satisfy the re-

quirements of Rule 14.1.(f) and (g) of the Rules of the

United States Supreme Court. :

* A quick review of Tribal Government Today, Politics on Montana

Indian Reservations, Revised Edition, University of Colorado Press

(1998), demonstrates that there are many more than eleven Tribes

represented in Montana and there are seven federally-recognized tribal

governments.

11

B. PETITIONER MISAPPREHENDS THE CON-

STITUTIONAL STATUS OF A HUNTING

PRIVILEGE UNDER MONTANA LAW

Unspoken in Petitioner’s claim is the erroneous

presumption that hunting big game under Montana law is

a Constitutionally-protected right and therefore any

regulation that treats her differently from other persons

must be subject to strict scrutiny. This Court has held

differently. In Baldwin v. Fish and Game Commission of

Montana, 436 U.S. 371 (1978), nonresident big game

hunters challenged 1 Montana big game hunting regula-

tion that gave residents of Montana preferential treatment

over nonresidents. Treatment under that regulation was

based on one single fact, the political distinction between

Montana residents and nonresidents. There, as in the

instant case, petitioners argued that the Montana regula-

tion violated the Due Process clause of the 14th Amend-

ment of the U.S. Constitution and was therefore subject to

a “strict scrutiny” analysis. Jd. at 373.

The Baldwin Court found that there was no Constitu-

tional right to hunt under Montana law. Rather, hunting

under Montana law is “‘no more than a chance to engage

temporarily in a recreational activity in a sister state’ and

was ‘not fundamental.’ Thus, it was not protected as a

privilege and an immunity under the Constitution’s art.

IV, §2.” Id. at 377. The Court identified the legitimate

State interests the regulation served, including securing

funding for wildlife management (Id. at 374, note 9, 376),

wildlife conservation and management (Id. at 377), limit-

ing harvest (Jd.), and concluded that strict scrutiny was

not justified. Instead, “[rJationality is sufficient.” Id. at

391. These State interests rationally justify disparate

treatment of hunting privileges under Montana law based

~ 12

on the political status of the hunter. The Baldwin Court

concluded that “the State’s efforts [are] rational, and not

invidious, and therefore not violative of the Equal Protec-

tion Clause.” Id. at 389.

Baldwin also notes that Montana’s big game hunting

regulations must take into consideration subjects not

expressly written into State law. “The fact that the State’s

control over wildlife is not exclusive and absolute in the

face of federal regulation and certain federally protected

interests does not compel the conclusion that it is mean-

ingless in their absence.” Id. at 386; see also, Pet. App. 12.

The Montana Supreme Court has long recognized that

the Hellgate Treaty is one of the “federally protected

interests” acknowledged in Baldwin. In State v. McClure,

127 Mont. 534, 539-540, 268 P.2d 629, 631 (1954), the

Montana Supreme Court found tHat the Hellgate Treaty:

[Slolemnly entered into is a contract between two

independent nations, in this case, the United

States of America and the Flathead Nation, and

such a treaty is regarded as a part of the law of

the state as much as the state’s own laws and

Constitution and is effective and binding on state

legislatures.

The Shook Court noted that the Montana regulation at

issue here was crafted to take into consideration Indian

treaty rights. Pet. App. 7. As this Court recently confirmed

in Mille Lacs, supra, treaty-reserved hunting and fishing

rights survive, even off-Reservation, in spite of intervening

statehood, and state law must accommodate them as a

matter of federal law. The Shook Court is in line with

Mille Lacs. —

13

C. THE MONTANA SUPREME COURT PROP-

ERLY UPHELD ITS SOLEMN OBLIGATION

TO FOLLOW FEDERAL LAW

Petitioner has fabricated a rule the Shook Court did

not write. The fabrication has two parts. First, she claims

that the Shook Court improperly created a “de facto trust

relationship between Montana and the several Indian

tribes” (Pet. at 7), and concludes that Montana has “the

same ‘trust relationship’ with American-Indians as does

the federal government.” Pet. at i. This, Petitioner argues,

constitutes_a conflict between decisions of the Montana

and United States Supreme Court worthy of resolution by

this Court. Pet. at 6. Notably, however, Petitioner does not

and cannot cite to any such holding in the Shook decision,

for none exists. Even the case Petitioner relies on for this

fabricated argument, Washington v. Confederated Bands

and Tribes of the Yakima Indian Nation, 439 U.S. 463, 501

(1979), refutes it, noting that “classifications based on

tribal status and land tenure inhere in many of the deci-

sions of this Court involving jurisdictional controversies

between tribal Indians and States ... we find the argu-

ment that such classifications are ‘suspect’ an untenable

one.” (Citations omitted). Second, Petitioner asserts that

her manufactured conflict justifies a different equal

protection analysis for the Montana hunting regulation

than would be applicable under Morton Pet. 7. Notably,

however, Petitioner cites no judicial or legislative author-

ity for this part of the fabrication either.

What the Montana Supreme Court actually did was

find that the “State of Montana is required to follow this

federal precedent [Morton and Antelope] by the express

terms of both our own Constitution and the federal enabling

14

act establishing Montana as a state.” Pet. App. 7. From

there the Shook Court concluded thai:

[FJederal Indian law regarding the rights of In-

dians is binding on the state. Therefore, the state

equal protection guarantee under Article II, Sec-

tion 4 [of the Montana Constitution], must allow

for state classifications based on tribal member-

ship if those classifications can rationally be tied

to the fulfillment of the unique federal, and con-

sequent state, obligation toward Indians.

Pet. App. 7 (emphasis added).

Rather than conflicting with this Court, the Shook

Court properly upheld the supremacy of federal law, a

necessity under the Supremacy Clause of the United

States Constitution. The Skook Court correctly concluded

_that it was obligated to adhere to federal law when dealing

with Indian issues. This is consistent with Arizona v. San

Carlos Apache Tribe, 463 U.S. 545 (1983), another case

~ addressing limitations on state authority over treaty-

reserved rights. The Arizona Court concluded that “[s]tate

courts, as much as federal courts, have a solemn obligation

to follow federal law.” Jd. at 571. That is exactly what the

Shook Court did. This does not constitute the creation of a

de facto trust relationship. Consequently, because there is

no conflict between the United States Supreme Court and

the Montana Supreme Court on this point there is no basis

for review by this Court.

15

II. THERE IS NO CONFLICT BETWEEN THE

MONTANA SUPREME COURT DECISION

AND THE NINTH CIRCUIT COURT OF AP-

PEALS DECISION IN WILLIAMS v. BABBITT

Petitioner claims that the Shook decision is in conflict

with Williams v. Babbitt, 115 F.3d 657 (9th Cir. 1997), cert.

denied, 523 U.S. 1117 (1998). Pet. 21-24. Williams involved

a Chevron analysis of an agency interpretation of the

Reindeer Industry Act, 25 U.S.C. §500.° As interpreted,

Alaska Natives, rather than persons who may simply have

been born in Alaska, were afforded preference in raising

reindeer as a commercial crop. Even though the Act did

not explicitly limit the right to Natives, it appears that a

combination of factual and procedural constraints and

federal regulations resulted in an effective Native monop-

oly over commercial production of the introduced species.

Id. at 659, 660-661. Non-Natives challenged the Act as

violative of their equal protection rights. Id. at 659.

Far from constituting a conflict between the courts,

Williams distinguished treatment of Alaska Natives under

the Reindeer Act from treatment of Indian treaty-reserved

hunting and fishing rights, finding that, “[uJnlike raising

livestock, however, hunting and fishing wild game is an

integral and time-honored part of native subsistence

culture.” Id. at 664. Accord, Mille Lacs, supra. Supporting

the Morton political treatment of Indians, the Williams Court

provided numerous examples of Congressional treatment of

Indians as a political, not racial, classification. Id. at 664,

* Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984) (deference to agency interpretation of statutes and

regulations).

ee

16

footnote 6. There is no conflict between the Shook decision

and Williams.

e

.

CONCLUSION

The Montana Supreme Court decision is not in conflict

with the decisions of this Court or of a United States Court

of Appeals. The Writ of Certiorari should be denied.

Respectfully submitted,

JOHN B. CARTER

TRIBAL LEGAL DEPARTMENT

CONFEDERATED SALISH AND

KOOTENAI TRIBES

Post Office Box 278

Highway 93 North

Pablo, Montana 59855-0278

(406) 675-2700; Fax: 675-4665

Attorney for Amicus Curiae

Dated: July 28, 2003