# Amicus Curiae Brief — Shook v. Montana

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1573%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 815

## Text

“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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1573%3A4. Public record. Not legal advice.