1855 Nez Perce Treaty

Oregon CoA Affirms Illegal Hunting Conviction for Nez Perce Member

Sarah M Donnelly

Download decision here.

By using State v. Buchanon, 978 P.2d 1070 (Wash. 1999), the Oregon courts held that treaty hunting can only happen on traditional hunting grounds.  The bighorn sheep were taken on land south of the Powder River, which state witnesses testified was the Nez Perce Tribe’s southern border due to historical conflicts with the Northern Paiutes.

Defendant was charged in November 2008 after bringing the sheep to the Oregon Department of Fish and Wildlife for tagging so they could be stuffed.

The case is State v. James Bronson, Jr., 586 P.3d 154 (Ore. Ct. of App. 2016).

 

Idaho Court of Appeals Rejects Treaty Right to Travel as Jurisdictional Defense to Criminal Conviction

Matthew L.M. Fletcher

The opinion in State of Idaho v. Oatman is here. An excerpt:

The 1855 Nez Perce Treaty grants the members of that tribe the same right to travel that is enjoyed by all citizens of the United States. The right to travel enjoyed by citizens of the United States may be restricted as a result of criminal incarceration or probation. See, e.g., Jones v. Helms, 452 U.S. 412, 419, 101 S. Ct. 2434, 69 L. Ed. 2d 118 (1981)(holding that a state many infringe upon the fundamental right to travel when “a person has been convicted of a crime within a State. He may be detained within that State, and returned to it if he is found in another State.”); State v. Pinson, 104 Idaho 227, 231, 657 P.2d 1095, 1099 (Ct. App. 1983) (holding that, “as a condition of granting freedom to a probationer, society has the right to impose . . . restrictions on important liberties such as the right to travel.”). Oatman argues, in effect, that the Treaty grants members of the Nez Perce Tribe an absolute immunity from any criminal prosecution which could result in a term of confinement or probation. Such immunity would not be a rightin common with citizens of the United States.

We are also unconvinced that Oatman’s interpretation was the interpretation contemplated by the parties to the Treaty, for it subsequently provides that the tribe “agrees not to shelter or conceal offenders against the laws of the United States, but to deliver them up to the authorities for trial.” Treaty with the Nez Perces, art. VIII, June 11, 1855, 12 Stat. 957. If the parties intended that members of the tribe not be subjected to criminal proceedings which may result in incarceration or probation, such language would be unnecessary. We conclude that Oatman’s arguments are meritless. Accordingly, Oatman’s judgment of conviction for misdemeanor assault is affirmed.