State v. Delorme

North Dakota Rejects Aboriginal Title Challenge to Criminal Conviction

Matthew L.M. Fletcher

Here is the opinion in State v. Delorme. An excerpt:

Delorme was charged with two counts of guiding or outfitting without a license in Eddy County in violation of N.D.C.C. § 20.1-03-40 after guiding two undercover North Dakota Game and Fish Wardens to multiple hunting sites. The guiding expedition took place both on and off the Spirit Lake Indian Reservation. Delorme moved to dismiss the charges because of lack of subject matter jurisdiction, arguing the alleged crime took place on land reserved for the Pembina Band of Chippewa, where his aboriginal rights to hunt, fish, and gather are preserved by an 1863 treaty. The State opposed Delorme’s motion, arguing Delorme was charged with guiding or outfitting only on land outside the reservation and subject matter jurisdiction was not in dispute. The district court denied Delorme’s motion to dismiss, concluding Delorme failed to show how his offense fell outside of the court’s subject matter jurisdiction. The court noted, “When the veneer is scraped from his argument, what Mr. Delorme seeks is unequal protection of the law based on his race, something inimical to North Dakota law.”

Briefs:

Appellant brief

Appellee brief

North Dakota SCt to Hear Aboriginal Rights Case Tomorrow

Matthew L.M. Fletcher1 Comment

Here is the website linking to the materials in State v. Delorme.

Here are the materials:

And a description of the issues from each party:

Appellant’s Statement of the Issues:
The district court erred when they denied the Appellant’s Motion to Dismiss due to lack of subject matter jurisdiction of the Court based on Appellant’s aboriginal usufructuary rights as guaranteed and preserved in the 1863 Treaty of Old Crossing.
The district court erred when they granted the State’s Motion in Limine concerning reference to any land in Eddy County where these offenses are alleged to have occurred as being part of an Indian reservation or Indian Country, that the Appellant was licensed by the tribe as a guide and outfitter.

Appellee’s Statement of the Issues:
Issue 1 Whether an outfitting license issued by the Spirit Lake Sioux Tribe to one of its members, which is then transferred to a non-member, precludes state jurisdiction over the non-member’s off-reservation outfitting activities?
Issue 2 Whether an aboriginal right to hunt can be a defense to a non-hunting charge?
Issue 3 Whether North Dakota will be the only jurisdiction to expand aboriginal hunting rights to include “ancillary,” non-hunting activities?
Issue 4 Whether the land on which the violations occurred constitutes either aboriginal land or Indian country?
Issue 5 Whether an 1863 treaty, which conveyed “all” Indian interests, preserved a right to hunt?
Issue 6 Whether any right to hunt established by the 1863 treaty terminated as a result of Indian Claims Commission proceedings and, if not, is the right enforceable through an Indian group that has not maintained a political identity and is the right subject to state regulation?