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Shook loses appeal on Flathead hunting

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HELENA, Mont. - A non-Indian woman who claimed she could freely hunt on the Flathead Indian Reservation has lost her appeal to the Montana Supreme Court.

In 1997, Sandra White Shook shot a whitetail deer within the reservation on property owned by fellow non-Indian Robert "Beau" Rawlins. Shook later admitted she knew the action violated a Montana Fish, Wildlife and Parks Commission rule that prohibit non-Indians from killing big game on any of the state's seven Indian reserves.

Shook pleaded guilty to the misdemeanor charge in Sanders County Justice Court, where she and Missoula attorney Lisa Kauffman initially argued that Rawlins' land was not part of the reservation because it was privately held. At the time, Shook, an outspoken foe of tribal jurisdiction, lived within the reservation boundaries.

While appealing the validity of the rule to state district court, Shook and Kauffman changed tactics and argued that the land was indeed within the reservation, but that the state didn't have the authority to promulgate rules governing non-Indian hunting in such areas.

Shook later claimed the hunting regulation was unconstitutional because it allegedly served "no legitimate state interest," violated federal policy of "promoting self-regulation by tribes," and violated her equal-protection rights because it was illegally based on race. The rule, she and her attorney argued, also contradicted other state laws that allow hunting permission to be granted by private landowners.

"Essentially, the (commission) is erecting a refuge on private property without the owner's consent, justifying it because the land is on a reservation," Kauffman wrote in one brief.

Shook, who later moved off the reservation, admitted to central facts in the case and in 1999 again pleaded guilty to the charge before District Court Judge C.B. McNeil. Records show she was fined $500, given a five-day suspended jail sentence and ordered to forfeit her Montana hunting privileges for two years.

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Shook, now 57, and a new attorney, Tom Tobin of Winner, S.D., then appealed the state rule to the high court on constitutional grounds. The Confederated Salish and Kootenai Tribes and the Montana-Wyoming Tribal Judges Association joined the case as friends of the court and rallied against Shook's assertions.

Tobin strenuously argued that Shook's equal protection rights were being violated by the state and that she should not be prohibited from hunting on the basis of race.

"Tribal members on the reservation are allowed to hunt," Tobin told the court in 2001. "Non-Indian private landowners off the reservation are allowed to hunt on their own land. Only non-Indians are not allowed to hunt on the reservation. Only private landowners within the reservation are not allowed to hunt on their own land. The Legislature has not approved of this classification system."

A five-member Montana Supreme Court panel tore down the arguments in a unanimous ruling issued Dec. 30.

Noting that Shook didn't own the land she hunted on and that the property was not owned by a tribal member, Justice James Nelson wrote that the commission was within its legal authority to adopt the rule. He reiterated that the distinction between who can and cannot hunt on the reservation "is political, rather than racial."

Nelson also cited a U.S. Supreme Court ruling in the 1974 case of Morton v. Mancari that says laws that afford Indians special treatment are constitutional as long as they are rationally tied to the fulfillment of the unique federal obligation toward tribes.

"The state of Montana is required to follow this federal precedent by the express terms of both our own Constitution and the federal enabling act establishing Montana as a state," Nelson wrote. "(T)he commission has a duty to regulate hunting by non-tribal members in a way that recognizes the Indian hunting privileges protected by federal law."

The decision was also signed by Montana Chief Justice Karla Gray and associate justices Patricia Cotter, Jim Regnier and Terry Trieweiler, who recently announced he is resigning from the bench before the completion of his second term.