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Oregon v. Bojorcas

September 28, 1973

STATE OF OREGON, RESPONDENT,
v.
ROBERT VERNON BOJORCAS, APPELLANT. STATE OF OREGON, RESPONDENT, V. FLOYD BUD PARAZOO, APPELLANT. STATE OF OREGON, RESPONDENT, V. ALLEN KEITH NELSON, APPELLANT. STATE OF OREGON, RESPONDENT, V. ROBERT ALLEN HICKS, APPELLANT



Appeal from Circuit Court, Klamath County. Donald A. W. Piper, Judge.

Daniel H. Israel, Native American Rights Fund, Boulder, Colorado, for petition.

No appearance contra.

Foley, Judge. Schwab, Chief Judge, and Thornton, Judge.

Foley

Defendants contend in their petition for rehearing that this court should have ruled explicitly on their argument that the stipulation upon which they were convicted was insufficient to support the convictions, since it did not negate the possibility that defendants were hunting upon the trust land with the permission of the remaining tribal members. That argument is based on the premise that the remaining tribal members retain hunting rights, and that their rights are assignable to persons who are not members of the tribe. The premise is erroneous.

As we noted in our prior opinion, the Ninth Circuit Court of Appeals has held that the remaining tribal members no longer have hunting and trapping rights on the former reservation land. Klamath and Modoc Tribes v. Maison, 338 F2d 620 (9th Cir 1964). On a matter of federal law, we feel that federal court opinions are entitled to considerable weight, and we therefore follow the Ninth Circuit holding. Since the remaining members of the Klamath Tribe retained no rights to hunt and trap themselves, they clearly had no such rights to assign.

Defendants argue that the Ninth Circuit opinion has been impliedly overruled by the United States Supreme Court's opinion in Menominee Tribe v. United States, 391 U.S. 404, 88 S Ct 1705, 20 L Ed 2d

697 (1968), but both the treaty and the termination act involved in that case contained significantly different terms from those involved in the case at bar. In addition, as we noted in our prior opinion, the Supreme Court expressed no disapproval of the reasoning underlying the Ninth Circuit decision, despite the fact that it was aware of the terms of the Klamath Termination Act.

Petition for rehearing denied.

Disposition

Rehearing denied.

19730928 ...


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