MISSOULA, Mont. - Two Blackfeet tribal members accused of illegally killing bighorn sheep in Montana's Glacier National Park may be the key to resolving a century-old land dispute with the federal government.
Bailey D. Peterson, 46, and Glenn W. Hohmann, 41, each face three poaching-related counts for shooting two bighorns on Spot Mountain, just north of the Two Medicine Valley on the park's east side.
Documents filed in U.S. District Court in Missoula show the men were cited after park biologists studying wildlife in the area heard rifle shots, and observed Peterson packing a bighorn hide and head down the mountain last Jan.18. Hohmann, also carrying a rifle, was seen approaching Peterson after more shots were fired.
Peterson and Hohmann were charged in April with conspiring to violate the Lacey Act, a federal wildlife-protection statute, and for allegedly planning to sell parts of animals they knew were killed within the park, where hunting is prohibited.
While the men have pleaded innocent to the felonies, they don't deny killing the bighorns. Instead, they argue they had a legal right to hunt in the area because aboriginal rights are reserved by the Blackfeet Tribe.
The case is scheduled for trial later this fall before Judge Donald Molloy.
Kalispell attorney Daniel Wilson, representing Peterson, and Assistant Federal Defender John Rhodes, representing Hohmann, contend that an 1896 agreement between Blackfeet leaders and the federal government still allows tribal members to hunt within the disputed area in the park because previous court decisions have not fully resolved the issue.
The 1896 agreement, which changed the original boundaries of the reservation, was proposed by the federal government to advance mineral development in the area before national park status was granted by Congress in 1910. Also at issue in the current case is the location of the exact borderline of the park today.
"Evidence will demonstrate that the boundary between Glacier Park and the Blackfeet Reservation, as presently asserted by the United States, is not the true boundary" in the 1896 agreement, Wilson writes.
To bolster their argument, Wilson and Rhodes cite a 1974 federal court decision involving a Blackfeet tribal member who refused to pay an entrance fee when visiting the park. The defendant argued the 1896 compact allows unlimited free entry into Glacier, the right to hunt and fish and the right to remove timber "for their personal use for houses, fences and all other domestic purposes."
While the court upheld the right to unfettered access, it did not address the other issues, the attorneys note.
In a related case, another Blackfeet defendant tried to test the agreement about the same time by removing a tree branch from the park and claiming he was taking "timber." The court didn't buy the argument, however, and declined to answer the question of reserved rights, Wilson and Rhodes say.
Also in the mix is a 1935 lawsuit brought by the Blackfeet and other western tribes which sought compensation for various lands ceded to white settlers. Part of that case, the defense attorneys note, included a "special finding of fact" that claims the creation of Glacier Park "authoritatively terminated" the reserved rights, in part because the tribe allegedly hadn't adequately exercised them.
In the current case, Assistant U.S. Attorney Kris McLean blasted defense contentions. While an 1887 agreement between the Blackfeet, Gros Ventre and River Crow tribes resulted in the United States paying $1.5 million for 17.5 million acres of ceded aboriginal land, the 1896 agreement only protected hunting rights in the area Peterson and Hohmann were hunting until the time Glacier Park was formally established, he says.
The agreement, McLean holds, "contemplated that the right to hunt on the ceded strip would terminate when the lands ceased to be public lands," which technically happened in 1910. In addition, he says, the park was specifically created to protect fish and wildlife.
"Under relevant land law, lands reserved for special purposes are not considered public lands," McLean wrote in a recent brief. "Accordingly, national parks are not public lands because they are reserved and withdrawn from the public domain."
In addition, McLean argues the 1896 agreement envisioned tribal hunting in the ceded area to be governed by state fish and game laws. The state of Montana, he says, relinquished enforcement authority within the park in 1911. He also contends the park boundary issue was settled by the federal Indian Claims Commission in the 1950s, when the Blackfeet Tribe argued that surveying errors caused the loss of about 45,000 acres of land that the National Park Service now controls.
"The commission found that the tribe's evidence shows that the boundary had been surveyed correctly, and so it dismissed the complaint with prejudice," meaning it can't be filed again, McLean wrote. And since the land is no longer "open and unclaimed," the hunting rights no longer apply, he says.
So far, both Peterson, who is unemployed, and Hohmann, who works as a logger, have rejected plea agreement offers from federal prosecutors, and the Blackfeet Tribe, in a recent filing, continues to maintain that the charges should be dropped.
Each federal felony count carries up to five years imprisonment and up to $250,000 in fines upon a conviction.
Blackfeet tribal attorney Troy Woodward and Maylinn Smith of the University of Montana's Indian Law Clinic, invited by Molloy to file "friend of the court" briefs, contend the matter is a regulatory issue that should be handled by tribal officials. They also contend the Blackfeet Tribe doesn't differentiate between hunting for trophies and killing an animal only for meat.
Prosecutors maintain that after killing the bighorns, Peterson and Hohmann told tribal leaders they planned to sell the animal parts.
"Trophy hunting readily equates to subsistence hunting as long as the result is the same, the ability to provide for one's family," Woodward and Smith wrote. "If there are problems with the way this hunt was conducted, the Blackfeet tribal courts are the proper forum for addressing these issues."