Final brief in the Chad Smith “fishing rights” case. It is now up to the court to make final judgment.
IN THE COURT OF CRIMINAL APPEALS STATE OF OKLAHOMA
STEVEN EUGENE HANES,)
vs.) Case No. M- 97-1401
STATE OF OKLAHOMA,)
The State and the Defendant agree on several issues.
1) The State has no situs jurisdiction for criminal prosecutions on Indian country.
2) The Cherokee Nation possessed hunting and fishing rights within its territory. (The state does not dispute that the when the land in question was exchanged with the Cherokee Nation that, as a sovereign nation, it had the right to hunt and fish on the land. State’s Brief at page 17). The essential questions which continue after review of the State’s Brief are:
1) Is the Neosho River Indian country for purposes of criminal jurisdiction?
2) Did the Cherokee Nation ever loose its hunting and fishing rights?
The answer is the Neosho River is Indian country and the Cherokee Nation has retained its hunting and fishing rights. The State has no situs criminal jurisdiction over the first case occurring in the Neosho River and no subject matter jurisdiction over either case because Cherokee citizens may hunt and fish within the Cherokee Nation as a matter of right.
II. ARGUMENT AND AUTHORITY
A. THE STATE OF OKLAHOMA HAS NO CRIMINAL OR TERRITORIAL JURISDICTION OVER THE FIRST OFFENSE OF ILLEGALLY TAKING A GAME FISH.
Proposition One: The State of Oklahoma has no criminal or territorial jurisdiction over Indian country.
The narrow question is whether or not the Neosho River is Indian country. The first argument by the State is that the original territory of the Cherokee Nation did not constitute Indian country or a reservation. This analysis is important because it determines whether the Neosho River is within the jurisdictional boundaries of the Cherokee Nation and, secondly in a later analysis, defines the extent of the federally protected hunting and fishing rights of the Cherokee Nation.
The Cherokee Nation exchanged its lands in the southeast United States for lands in Indian Territory pursuant to the Indian Removal Act of 1834, receiving a fee patent from the federal government, the highest form of title exchanged between sovereigns.
The Cherokee Nation territory, composed of what is now all or part of the fourteen (14) northeastern counties of Oklahoma was Indian country pursuant to the Indian Removal Act and the holding in United States v Celestine, 215 U.S. 278 (1909). This designation was prior to the adoption of 18 U.S.C. § 1151 which provides the federal criminal jurisdiction definition of Indian country.
In Indian Country, U.S.A. Inc. v. Oklahoma Tax Commission, 829 F.2d 967 (10th Cir. 1987), the Tenth Circuit held the Creek territory was a reservation, the Mackey site was within the Creek reservation and the unalloted Mackey site was Indian country. The “Mackey site” analysis applies to the Neosho River. The history of the Cherokee Nation and the Muskogee (Creek) Nation is similar regarding the federal policy and case law regarding tribal lands since the Indian Removal Act of 1834.
Contrary to the arguments of the State, the boundaries established by the 1838 and 1846 Fee Patents by the federal government establish the exterior reservation boundaries of the Cherokee Nation which includes the Neosho River. There has never been any congressional action to disestablish these territorial boundaries or reservation. Therefore, the territorial boundaries or reservation to the Cherokee Nation are defined by the fee patents of 1838 and 1846 which includes the Neosho River.
The next question is whether or not the Neosho River remained Indian country after a series of allotment acts.
Proposition Two: The situs of the first alleged offense is Indian country.
As previously established, the Neosho River is navigable and pursuant to the United States Supreme Court holding in Choctaw Nation v. Oklahoma, 90 S.Ct. 1328 (1970) is owned by the Cherokee Nation. The State, contrary to its stipulation at trial, now argues that the Neosho River is not navigable and has been adjudicated as non-navigable. However, for a prior adjudication of fact to be binding on the Defendant, he or his interest must have been represented in the previous adjudication. SIL-FLO, Inc. v. SFHC, Inc., 917 F.2d 1507, (10th Cir.(Okla.), 1990).
For res judicata, issue preclusion, or collateral estoppel to be effective on the issue of the navigability of the Neosho River, there must be some tribal interest hostile to the State’s interest litigated in those cases. Each of the cases cited by the State, for the proposition that the Neosho River is not navigable, arise out the effort in the 1940’s of the State to avoid federal authority under the Federal Power Commission to control dams on the Grand River. The interest of the Cherokee Nation was never noticed, consulted or heard. In Grand River Dam Authority v. Going, 29 F. Supp 316, (N.D. Okla, 1939), the State proceeded to condemn lands for the construction of Grand Lake. Fundamental in its case was the proposition that the river must be non-navigable in order to proceed with the condemnation and project. The Cherokee Nation was not a party. There was not even an allegation in the petition by the state agency that the river was navigable. Going at 319. On the face of the decision in Going, there was no contested issue regarding the navigability of the Grand River. No finding was made regarding the Neosho River. The legal issue became whether the Federal Power Commission had authority over non-navigable rivers and it was in the State’s interest to allege the Grand River was non-navigable to preclude federal supervision.
Going did recite the test for navigability of a river as “susceptible of being used, in their ordinary condition, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water…” Going at 324. It should be noted that the date or time of test for a determination of navigability is when the Cherokee Nation received the river in 1833. In 1833, the customary mode of trade and travel on water was by canoe, not paddle boat, ferry, tug boat or barge. Factually, the Neosho River was navigable in 1833 by customary mode.
In Grand River Dam Authority v Grand-Hyrdo, 69 S.Ct. 114, 335 U.S. 359 (1948), the Authority began condemnation proceedings for construction of a dam. The question was regarding the criteria for damages. The Authority argued if the Grand River was non-navigable, construction of a dam by the state created Grand River Authority would be subject only to state laws and not the Federal Power Commission. It was in the interest of the State to advocate the river was non-navigable and not subject to the Federal Power Commission. The Court decided that since the purchaser was not the federal government, fair market value was required. The Cherokee Nation nor its interests were represented. The Court referred to the Grand River in parenthesis as the Neosho River.
In United States v Grand River Dam Authority, 363 U.S. 229 80 S.Ct. 1134 (1960), the issue of authority of the Federal Power Commission over rivers in Oklahoma came to a head. The Authority argued that the federal government appropriated state property by building down stream a flood control dam and power generation station. Again, the interest of the Cherokee Nation was not represented and it was in the interest of the State to argue the Grand River was non-navigable.
The Court found, regardless of whether or not the Grand River was navigable, the Federal Power Commission had authority over the river because activity on tributary of a navigable river would effect the navigable river. None of the cases cited is a bar to the stipulation of the parties at trial. Reason supports the stipulation of the parties that the Neosho River was navigable because in 1833 when the federal government exchanged lands with the Cherokees, it was navigable by the common mode of transportation and commerce. Local State officials were in the best factual and historical position to acknowledge navigability and stipulate.
The United States Supreme Court, in Grand River Dam Authority, did discuss briefly whether water rights had been alienated by the Cherokee Nation pursuant to the Act of March 3, 1893, 27 Stat 612, where the federal government granted permission for the Cherokee Nation to allot its land in severalty. The Court citing Brewer-Elliot Oil& Gas v United States, 260 U.S. 77, 87-88, 43 S.Ct. 60, 64, 67 L.Ed. 140 held that the admission of Oklahoma as state did not divest title from Indian tribes.
Oklahoma legislation, 82 O.S. 1991 § 887 declaring the Grand River non-navigable does not assist the State in determining whether or not the Neosho River was navigable prior to Oklahoma Statehood especially in light of the foregoing analysis. The State cannot legislate historical fact.
Therefore, for purposes of the present criminal prosecution, the Neosho River at the place of the criminal incident was found navigable by the trial court with a sound basis and pursuant to the holding of the U.S. Supreme Court in Choctaw Nation and the Tenth Circuit in Indian Country U.S.A., the subject incident occurred on Indian country. B. THE CHEROKEE NATION HAS RETAINED ITS HUNTING AND FISHING RIGHTS WITHIN THE CHEROKEE NATION PROPER.
Proposition One: The Cherokee Nation has not ceded its governmental and communal rights, power and authority over the Cherokee Nation proper to the United States or the State of Oklahoma.
The State argues that the “distinction between the words “cede” and “convey” is a false one. This Court, as well as the Cherokee Nation and federal government, are entitled to rely on the words expressed and memorialized in treaties and their well accepted usage and meaning. These words mean what they say. For the State to argue the distinction between “cede” and “convey” is a false one is similar to arguing that the difference between “day” and “night” is a false one. The State may not avoid the black letter of the law in its zeal to eradicate the last few rights of the Cherokee Nation. As pointed out by the State, “cede” means to transfer between governments. The Cherokee Nation is a domestic dependant sovereign. Cherokee Nation v. Georgia , 30 U.S. (5 Pet.) 1, (1831) . The federal government has used the word “cede” in each of its treaties where the Cherokee Nation sold or exchange land to the federal government and surrendered its government claims. The word “cede”, in the consistent context of federal-Indian relations and especially with the Cherokee Nation as found in the allotment acts from 1893 to 1906, means the transfer of the sovereign interest of governments.
The State understands clearly pursuant to the subject allotment acts the title of the Cherokee Nation real estate “was not being transferred between sovereigns, but between the Cherokee government and its citizens”, i.e. its proprietary interest was being conveyed. State’s Brief at page 11. However, the State wishes to rewrite the legislation regarding allotment of land with provisions that do not exist. The Cherokee Nation never ceded, relinquished, or transferred any governmental or communal interest in hunting and fishing right in the acts providing for allotment. Contrary to the argument of the State, the Cherokee Nation did not ratify the “Agreement with the Cherokee Nation, April 1, 1900, U.S. Cherokee, Art. 4, 58. Congress explicitly provided that the Cherokee Nation continue in full force and effect in 1906. See Endnote 2.
The State’s argument that the Cherokee Nation “was aware that it was ceding all jurisdiction over the land in question, as it intended to dissolve itself,” is not true, begs the issue, and is inconsequential. The clear and unequivocal fact and proposition of law is that the Cherokee Nation was not dissolved and was continued in full force and effect by federal law. Further, the State misstates the law found in the subject allotment acts that the Cherokee Nation renounced its claim over the land in question. The Cherokee Nation agreed to allot its land to its citizens; no where in the subject acts did the Cherokee Nation renounce its territorial or civil jurisdiction claim over land, property and citizens in question as it did in the various treaties in which it ceded land.
The State argues that the allotted land would become subject to the civil and criminal law of the “State of Territory” in which the allottee resided pursuant to 25 U.S.C. § 349. This section of federal law is part of the Indian General Allotment Act, February 8. 1887, 24 Stat 388. The Five Civilized Tribes, including the Cherokee Nation, were excluded from the General Allotment Act. See 25 U.S.C. § 339. The allotment provisions for the Five Civilized Tribes were unique and contained in the subject acts from 1898 until 1906 as discussed above. See Endnote 2. Therefore, the State’s argument regarding the General Allotment Act of 1887, including 25 U.S.C. § 349, providing state jurisdiction is clearly in error. Even if it were not in error the argument does not address whether or not the Cherokee Nation preserved its hunting and fishing rights.
Proposition Two: The Cherokee Nation collectively retains its hunting and fishing rights.
The State argues that whether or not the Cherokee Nation retains any hunting and fishing rights is immaterial to the case in question. State’s Brief at page 14. To the contrary, that is the essence of this case. This Court has no subject matter jurisdiction over federally protected treaty and inherent rights of the Cherokee Nation regardless of whether or not the Court has situs and personal jurisdiction. For example, if the federal government affirms sovereign immunity of Indian tribes, the courts of Oklahoma have no subject matter jurisdiction regardless of whether the tribe or nation is found within state jurisdiction. See Kiowa Tribe v. Manufacturing Technologies Inc., 96-1037, 5/26/98 .
The State proceeds with the argument that the State can regulate and enforce its hunting and fishing laws against the Cherokee nationals outside of the jurisdiction boundaries of the Cherokee Nation. That is true. If a Cherokee citizen is hunting and fishing in southeastern Oklahoma, outside the territorial boundaries of the Cherokee Nation then the State has subject matter criminal jurisdiction. However, within its territorial boundaries and other such areas as provided by treaty or congressional action, the Cherokee Nation has a federally protected treaty and inherent right to hunt and fish without criminal prosecution.
The State agrees that wildlife is property. See Brief at page 5. Hunting and fishing rights are deemed property. Organized Village of Kake v Egan, 369 U.S. 60, 66, 82 S.Ct. 562, 566 (1962). In the instant case, it is the Cherokee Nation’s property right to hunt and fish under review.
Therefore, the question remains whether or not the hunting and fishing rights of the Cherokee Nation have been extinguished. The State argues that allotted land was appraised at fair market value therefore, the Cherokee Nation was selling it hunting and fishing rights. The allotted land was not sold, it was transferred in-kind to individual citizens. Regardless, the State acknowledges that wildlife is property held by the respective government and, in this case, the Cherokee Nation. Does the State upon selling surplus property to individuals transfer wildlife and extinguish its right to control hunting and fishing? Of course not. That property right is a one of the government subject to exercise by its citizens. Hunting and fishing rights are property rights subject to compensation upon taking. See Menominee v. U.S., 391 U.S. 404, 413, 105, 88 S.Ct. 1705, 20 L.Ed. 697, 699 (1968). Congress has never declared a taking of these rights nor paid for them. Therefore, this argument is without merit.
Hunting and fishing rights were valuable to the Cherokee Nation from time immemorial and were often the subject of treaty negotiations. Hunting and fishing rights were recognized both by the United States and the Cherokee Nation as valuable assets of the Cherokee Nation and important to the subsistence and culture of the Cherokee people.
For example, the Cherokee Nation, in 1835, entered into a peace treaty between the United States, and several plains tribes. This treaty titled, “Treaty of the Comanche”, dated August 24, 1835, and found at 7 Stat. 474, Proclamation May 19, 1836, provided in Article 4.: It is understood and agreed by all the nations or tribes of Indians party to this treaty, that each and all of the said nations or tribes have free permission to hunt and trap in the Great Prairie west of the Cross Timber, to the western limits of the United States.
See Exhibit “A”, Treaty with the Comanche.”
This treaty provided Cherokees with hunting rights to the west and south of the Cherokee Nation territory to share with the other party tribes. The value of this Treaty to the instant case is to demonstrate the contemporary understanding and critical necessity for hunting rights. If Congress granted hunting and fishing rights outside the Cherokee Nation to the Cherokee Nation then surely the parties to the various treaties understood the Cherokee Nation possessed those rights within its territory. Once those rights have been identified a clear and definitive taking of those rights by the federal government must be established. The hunting and fishing rights in Indian Territory acquired pursuant to the Indian Removal Act of 1830, Treaties of 1833 and 1835 and fee patents of 1838 and 1846 were valuable rights vested in the Cherokee Nation.
The State cites Organized Village of Kake v. Egan, 369 U.S. 60, 75, 82 S.Ct. 562, 7 L.Ed.2d 573 583-84 (1962) and Puyallup Tribe v, Department of Game, 391 U.S. 392, 88 S.Ct. 1725, 20 L.Ed.2d 689 (1968) for the proposition that the State can regulate hunting and fishing rights of tribes outside their reservations. Yes, the State can. In each of those cases, the respective tribes secured by treaty the right to fish outside their reservation. That is not the case at hand. As demonstrated, the territorial boundaries of the Cherokee Nation, i.e. its reservation, has never been disestablished and its property right to hunt and fish within that territory has never been extinguished. Kake and Puyallup do not assist the State in their effort to extinguish these Cherokee Nation rights. The United States Supreme Court affirmed in Puyallup that the state court has no jurisdiction over on-reservation fishing. 433 U.S. at 174.
Proposition Three: The United States Government has repeatedly recognized the Cherokee Nation’s hunting and fishing rights by means of treaties and patents.
The State concedes this point but argues those hunting and fishing rights were terminated by the Cherokee Supplement Agreement, Act of July 1, 1902, 32 Stat. 716. The State has not been able to show which provision of this Act that the Cherokee Nation relinquished its hunting and fishing rights to the United States or the State or where the federal government abrogated those rights. A thorough review of the Cherokee Supplement Agreement shows that no such provisions exists.
Proposition Four: The State of Oklahoma has limited authority to impinge upon the hunting and fishing rights of the Cherokee Nation.
The State may enact and enforce no statute or regulation in conflict with treaties in force between the United States and the Indian nations. A treaty guaranteeing certain rights to the subject of a signatory nation is self-executing and supersedes state law. United States v. State of Washington, 520 F.2d 676, 684 (1975). The treaties were “not a grant of rights to the Indians, but a grant of rights from them- a reservation of those not granted.” United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905). It is well settled that only to the extent, the Cherokee Nation has surrendered those hunting and fishing rights may the State assert subject matter jurisdiction.
Proposition Five: The Cherokee Nation has retained their hunting and fishing rights with out being subject criminal prosecution by the State.
The State argues that the holdings of the U.S. Supreme Court in Menominee Tribe v. United States, 391 U.S. 404, 105, 88 S.Ct. 1705, 20 L.Ed. 697, 699 (1968) and the Ninth Circuit in Kimball v. Callahan, 493 F.2d 564 (9th Cir. 1974) cert. denied 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1974) are not binding because those cases depend on 18 U.S.C. §1162 which was enacted after the Cherokee Supplemental Agreement in 1902 . However, those cases turn on the principle of law that there must be clear unequivocal abrogation of a treaty right for the State to assert jurisdiction. The State argues there is no treaty or agreement that has preserved the hunting and fishing rights of the Cherokee Nation after the land was allotted. Of pertinent interest is that the U.S. Supreme Court in confirming the hunting and fishing rights of the Menominees noted in Menominee that, “Nothing was said in the 1854 treaty about hunting and fishing rights.” The pertinent facts in Menominee were that Wisconsin took the position the Menominees were subject to its hunting and fishing regulations contending that the hunting and fishing rights of the Menominees had been abrogated by Congress in the Menominee Indian Termination Act of 1954. This act actually terminated the tribal existence of the Menominees and specifically disestablished their reservation explicitly subjecting them to state jurisdiction. The U.S. Supreme Court held that the Menominees’ hunting and fishing rights survived this termination effort. It is apparent that the State misreads this case where it argues the Menominees’ hunting and fishing rights were terminated. State Brief at page 18. The holding of the case is that in spite of termination of the Menominee tribe, its hunting and fishing rights survived. In the instant case, the Five Civilized Tribes Act of 1906 specifically continued the legal existence of the Cherokee Nation and repealed any inconsistent prior legislation. No allotment act disestablished the Cherokee Nation reservation and there has been no federal statute to subject the hunting and fishing rights of the Cherokee Nation to State jurisdiction.
Even if the Cherokee Nation was terminated (which it was not), Menominee holds that the tribal hunting and fishing rights survive that termination.
Congress allowed the various states with Indian populations to extend state jurisdiction over Indians and Indian country by the passage of Public Law 280, Action of August 15, 1953, 67 Stat. 588. Congress limited the extension of state jurisdiction over Indians without the express permission of the tribe in 1968 with the passage of the Indian Civil Rights Act of 1968, Public Law 90-284, 82 Stat. 72, 25 U.S.C. 1301 et seq. The Indian Civil rights Act did not “authorize regulation of the use of such proper in a manner inconsistent with any Federal treaty, agreement, or statute or ….confer jurisdiction upon the State to adjudicate … the ownership or right to possession of such property or any interest therein.” 25 U.S.C. § 1322 (b).
Public Law 280 provided the State of Oklahoma the opportunity to assume criminal and civil jurisdiction over the interests of the Cherokee Nation in 1953, however, the State declined. Logic and legislative cannons of construction instruct that if Public Law 280 extended the opportunity to assert criminal and civil jurisdiction to the State over the interests of the Cherokee Nation in 1953, it did not have that jurisdiction prior to that time.
Several of the State’s arguments are similar to those found in United States v. Felter, 546 F.Supp 1002 (D.Uth, 1982). In Felter, the defendant in an unlawful fishing criminal case was a terminated member of the Ute tribe pursuant to the Ute Termination Act. The Ute Termination Act was silent on the subject of hunting and fishing rights. The government argued that the hunting and fishing rights of Felter were 1) extinguished by the final termination of Felter’s federal Indian recognition, 2) the hunting and fishing rights were partitioned and distributed with the land, and 3) the hunting and fishing rights dissipated through the process of termination. In response to the State’s first argument, the Felter court held, citing Menominee, that the termination act could not be used as a “backhanded way of abrogating hunting and fishing rights” of Felter. 546 at 1014. The Felter court entertained the argument that 18 U.S.C. §1162(b), which prevented assertion of state jurisdiction over hunting and fishing rights of tribes, did not apply. Utah, like Oklahoma, did not assume jurisdiction pursuant to Public Law 280.
The court held:
The Government argues the Public Law 280 not be considered in construing the Ute Termination Act for two reasons: this case does not involve treaty rights, and Utah was not a “Public Law 280″ state. Again, the Government reads far too narrowly. While Menominee on it faces dealt with rights recognized by the treaty, the relevant language of Public Law 280 speaks of hunting, fishing and trapping rights recognized under “federal treaty, agreement, or statute…” 18 U.S.C. § 1162 (b); 25 U.S.C. § 1321 (b) (emphasis added). No distinction is drawn. Public Law 280, therefore, reflects congressional concern that these rights not be infringed upon through the transfer of jurisdictional responsibility to states, regardless of how those rights are recognized by Congress. Cf. Antoine v, Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed. 129 (1975). The second distinguishing grounds also does not withstand close analysis.
The Felter court held succinctly, “This Court now refuses to find a complete abrogation of the mixed-blood Utes’ hunting and fishing rights for the simple reason that Congress did not provide for one.” 546 F.Supp. 1018.
The Felter court addressed the State’s argument that hunting and fishing right were distributed with the land and cited a case involving the Cherokee Nation, Journeycake v. Cherokee Nation, 28 Ct.Cl. 281, 302 (1893) affirmed 155 U.S. 196, 15 S.Ct. 55, 39 L.Ed 120 (1894), in finding that hunting and fishing rights were a communal right of the tribal citizens belonging to the tribe. The Felter court found that those rights were not alienable from the tribe with the distribution of tribal land.
The last argument advanced by the State addressed by the Felter court, is that the hunting and fishing rights merely dissipated upon termination. The court found this argument “untenable.” 546 F.Supp 1007, footnote 7.
The Felter court dismissed the criminal case holding, “this Court must find that as a matter of law the conviction cannot be sustained due to the failure of the Government to overcome the defendant’s claim of right.” Similarly, Defendant Hanes is entitled to dismissal of the subject criminal case due to the State of Oklahoma’s failure to overcome the defendant’s claim of right to hunt and fish as a Cherokee Nation citizen within the territory of the Cherokee Nation proper.
Proposition Six: The State of Oklahoma has disclaimed any jurisdiction over the Cherokee Nation hunting and fishing rights.
The Oklahoma Enabling Act disclaimed state jurisdiction over Indian property. The Tenth Circuit in Indian Country , U.S.A. Inc. v. Oklahoma Tax Commission, 829 F.2d 967 (10th Cir, 1987), cert. denied sub. No. OTC v. Creek Nation, 487 U.S. 1218 (1988), concluded that the state had no jurisdiction over the property of the Creek Nation and the Five Civilized.
The Tenth Circuit in Indian Country held:
We reject the State’s interpretation of Oklahoma’s enabling act because the State’s construction completely ignores the effect of section one of the act, in which Congress explicitly preserved federal authority… Oklahoma Enabling Act, § 1, 34 Stat. at 267-68. Section one is a general reservation of federal and tribal jurisdiction over “Indians, their lands, [and] property,” except as extinguished by the tribes or the federal -not state – government.” Indian Country at 979 .
The hunting and fishing rights are property of the Cherokee Nation and its citizens and those jurisdiction over those rights have been disclaimed by the State, preempted by the federal government and survive without state regulation.
Proposition Seven: Cannons of Construction require a conclusion that the hunting and fishing rights of the Cherokee Nation have not be abrogated.
The State repeatedly argues that the federal legislation did not preserve any hunting and fishing rights. See Brief at page 15. Those rights which have never been extinguished by treaty or legislation remain in effect. However, the State wants to ignore the fundamental principal of Indian inherent and treaty rights that unless those rights are explicitly treated away or taken by the federal government, the Indian tribe or nation retains those rights. Since it is conceded by the State the Cherokee Nation held these federally protected hunting and fishing rights prior to Oklahoma Statehood, the State must show how, when and where those rights were explicitly treated away, taken, or sold. It has not.
The State’s popular argument is that even if those rights existed at the time of the ratification of the treaties, those rights no longer exist. However, the fatal flaw in that argument is when, where and how were those hunting rights abrogated, extinguished, lost, taken or traded. If the State cannot do so, those rights remain. These are fundamental and threshold questions that must be answered by the State in order to prosecute the instant case. What treaty, statute or judicial determination extinguished those hunting and fishing rights? The Tenth Circuit in EEOC v. Cherokee Nation, 871 F 2d 937 (10th Cir. 1989) stated:
Like the Supreme Court, we have been “extremely reluctant to find congressional abrogation of treaty rights” absent explicit statutory language. See United States v. Dion, 476 U.S. 734, 739, 106 S.Ct. 2216, 2220, 90 L.Ed.2d 767 (1986). We are also mindful that we should not “construe statutes as abrogating treaty rights in a ‘backhanded way’; in the absence of explicit statement, ‘the intention to abrogate or modify a treaty is not to be lightly imputed to the Congress.’ Indian treaty rights are too fundamental to be easily cast aside.” Id. (citations omitted).
Therefore, the cannons of construction of Indian law required the State to show clear and unequivocable abrogation of the hunting and fishing rights of the Cherokee Nation. It has not. The statutes cited by the State are silent as to the abrogation of the Cherokee Nation’s hunting and fishing rights. Therefore, they continue to exist.
This case has two parts. The first is whether or not the Neosho River is Indian country for purposes of criminal prosecution. The stipulation at trial was that the Neosho River was navigable which is one based on reason and knowledge of the river’s condition in 1835. It was exchanged with the Cherokee Nation at that time and could be used for transportation in the customary mode. If it is navigable, it is Indian country pursuant to the holdings of Choctaw v. U.S. (the Arkansas River bed is owned by the Cherokee Nation and is navigable) and Indian Country U.S.A. (Arkansas River bed and banks are Indian country).
The second part of this case is whether or not the hunting and fishing rights of the Cherokee Nation were ever extinguished. If they were, then it is the State’s burden to show when, where and those rights were lost by unequivocal treaty or congressional act. The State concedes that prior to Oklahoma Statehood the Cherokee Nation held as a right of sovereignty those hunting and fishing rights but now argues those rights have been lost. The State argues the silence of the Cherokee Supplemental Agreement of 1902 did away with those rights. It did not. There is no language in that Act or any other that the Cherokee Nation treated, gave, alienated or sold these property rights. Failure of the State to conclusively show abrogation of these rights means those rights still exist. Where the Cherokee Nation retained its federally protected hunting and fishing rights, the State has no criminal subject jurisdiction to prosecute the instance offenses. Pursuant to the principles of law found in Menominee, Kimball and Felter, Defendant Hanes may hunt and fish as a matter of right without State criminal prosecution.
The hunting and fishing rights of the Cherokee Nation are valuable rights and cherished not only historically but presently. The Council of the Cherokee Nation unanimously enacted a resolution adopting and endorsing the claim argued in this case that the Cherokee Nation stills retains its hunting and fishing rights. See Exhibit “B” Resolution of Cherokee Nation