Appeal from Circuit Court, Klamath County. Donald A. W. Piper, Judge. Nos. 72-111, 72-112, 72-110, 72-113.
Daniel H. Israel, Native American Rights Fund, Boulder, Colorado, argued the cause for appellants. With him on the briefs were L. A. Aschenbrenner and Marmaduke, Aschenbrenner, Merten & Saltveit, Portland; and Hal F. Coe, Klamath Falls.
John W. Osburn, Solicitor General, Salem, argued the cause for respondent. With him on the briefs was Lee Johnson, Attorney General, Salem.
Foley, Judge. Schwab, Chief Judge, and Thornton, Judge.
Defendants were charged with the crime of illegal possession of deer in violation of ORS 498.030. The parties stipulated (1) that defendants were "withdrawn members" of the Klamath Tribe of Indians and (2) that they were in possession of deer which they had killed on former reservation land, as charged in the complaint. Defendants were convicted and fined and have appealed their convictions, contending that they have certain treaty rights which exempt them from state game laws.
It is necessary to review briefly the history of
the relationship between the Klamath Tribe of Indians and the United States Government in order to gain a perspective on the present controversy. The treaty between the United States and the Klamath and Modoc Tribes and Yahooskin Band of Snake Indians was concluded on October 14, 1864, and proclaimed on February 17, 1870. 16 Stat 707. That treaty guaranteed to the Indian tribes, among other things, "* * * the exclusive right of taking fish in the streams and lakes, included in said reservation, and of gathering edible roots, seeds, and berries within its limits * * *" and that language has been interpreted to include the right to hunt and trap on the reservation free from state regulation. Klamath & Modoc Tribes, Etc. v. Maison, 139 F Supp 634 (D Or 1956).
In 1961 the Klamath Termination Act, 25 USC §§ 564-564w became effective. The purpose of the Termination Act, as set forth in § 564, is to provide for
"* * * the termination of Federal supervision over the trust and restricted property of the Klamath Tribe of Indians consisting of the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians, and of the individual members thereof, for the disposition of federally owned property acquired or withdrawn for the administration of the affairs of said Indians, and for a termination of Federal services furnished such Indians because of their status as Indians."
In order to accomplish this end, a procedure was established by which each member of the tribe was given an opportunity to elect to withdraw from the tribe and have his interest in tribal property converted into money and paid to him, or to remain in the tribe and participate in a tribal management plan prepared pursuant to the Act. 25 USC § 564d (a)(2). Four
hundred seventy three members of the tribe elected to remain in the tribe and their proportionate share of tribal property was transferred to a bank as trustee for the remaining members. One thousand six hundred sixty members of the tribe, on the other hand, elected to withdraw from the tribe and they received cash payments for their shares of tribal property. See Klamath and Modoc Tribes v. Maison, 338 F2d ...