                                        No. 99-608

             lX THE SllPREZlE COC'RT OF THE STATE OF SIONTANA




STATE OF h10X-l'AS,41

            Plaintisf and Respondent.

      V

SANDR.4 WHITE SHOOK,

            Defendant and Appellant.


APPEAI. FROM:      District Court of the Twentieth Judicial District,
                   In and for the County of Sanders,
                   The Honorable C. B. McNeil, Judgc presiding.

COUNSEL. OF RECORD:

            For Appellant:

                   Toni D. Tobin; Tobirl Law Office, Winner, South Dakota

            For Respondent:

                   Hon. ithke LleGrath, Attorney General, Sarah .4. Bond,
                   Assrstant Attorney General, Helena, Montana

                   Robert Z n n m e m ~ n Sanders County Attorney, Thon~pson
                                          .                                Falls
                   Montana

            For Amicus Curiae:

                   John B. Carterl 1)arriel F. Decker, Tribal Legal Departmentl
                   Confederated Salisll and Kootenai Tribes, Pablo, Montana
                   (for Confederated Salish and Kootenai Tribes)

                   Maylinn Smith, Indian Law Clinic, University of hlontana,
                   Missoula, Montana (for Montana-Wyoming Tribal Judges Association)



                                                  Submitted on Briefs: October 4, 2001




                                        P Clerk
Justice James C.Nelson dclivered the Opinion of the Court.


         .)iFpciiant Sai:dra White Shook (Shook) appea!s an order of the 'T\veiitieth Judicial

District Court: Sanders Countyl denying her motion to dismiss the charge against her end

tipholding the Montana Fish, Wildlife and Parks Commission (Commission) regulation

prollib~ting
           non-tribal members fro111hunting big game on all Indtan resel-vat~ons Montana.
                                                                               m

We affirm.

1
'2       We address the following issues 011 appeal:

73      1. Did the District Court properly conclude that the state's big game hunting c l o s ~ ~ r e
to nort-tribal ntembers on Ind~an  resenations does not violate constitutional guarantees of
equal protection?

74     2. Did the District Court properly conclude that the state's big game hunting closure
to non-tribal members on Indian reservations is not an unlawful exercise of the powers of the
Commission?

                  I. FACTU.4k AKD PROCEDURAL BACKGROUXD

75       On or about Wovember 16, 1997, Shook shot and killed a whitetail buck on private

property within the exterior boundaries of the Flathead Indian Reservation.               Under

Commission hunting regulations, blg game hunting privileges on Indian Reservations are

limited to tribal members only, thereby closing the hunting season to non-tribal members.

Shoo!,   is not a tribal member. Further, Shook dtd not own the pnvate property where she

huntedt nor was the property owned by a tribal member. Shook was charged with hunting

~vithin closed area in violation of 5 87-1-304, MCA, with the penalty provided in 3 87- 1-
       a

102, MCA.
*d6    Shook pleaded guiity injustice court. However, pursuant to $ 46-12-203(3). MCA,

she reserved her right to a review of the advcrsc determination of'hcr initial rnotioa lo

dismiss. Shook rhcn appealed to the District Court, asserting in her renewed motion to

dismiss that the closure to non-triba! members was invalid for several reasons. The parties

then stipulated to facts sufficient to establish the offense charged.

77     Based on the stipulated facts, the District Court addressed Shook's motion to dismiss

and concluded that the regulatioil limiting big game hunting on reservations to tribal

members did not violate the Montana Constitution and was a valid exercise of the powers of

the Commission. Shook subsequently pleaded guilty, admitting in open court to killing a

whitetail deer on private property within the Flathead Reservation that she did not own, and

admitting to knowing that the area was closed under Commission regulations. Shook was

sentenced and appealed the District Court's ruling.

78     After Shook filed her notice of appeall Shook and the State stipulated to a motion to

vacate the appeal in this Coui-t in order to allow for possible resentencing by the District

Court. However, the District Court declined to resentence in an order dated .March 12,2001.

As a result, Shook then proceeded with this appeal. We allowed the Confederated Salish and

Kootenai Tribes (the Tribes) and the Montana-\it7>rorning
                                                        Tribal Judges Association to submit

anzici briefs.

                              11. STANDARD OF REVIEW

9      In this case, the District Court's order denying Shook's motion to dismiss is based

entirely on conclusions of law regarding the legality of the state's big game hunting

                                               3
prohibition for non-tribal members on land within the exterior boundaries of lndian

reservations in the stale. Accordingly, \we review the District Court's conclusions of law lo

determine whether those conclusions are correct. Zenlpel v. Lhirzsatred Eq~loye~*.?'
                                                                                 Fotzd

(199?), 282 Mont. 424.428: 938 P.2d 658,661. Further, we will affirm the District Court's

ruling if the court reached the corrcct result for the birong reason. State v. P~zvker,
                                                                                      1998 MT

h , y 20,287 Mont. \ 5 1 , 7 20.953 P.2d692,T 20




710    1. Did the District Court properly conclude that the state's big game
       hunting ctosure to non-tribal members on Indian reservations does not
       violate constitutional guarantees of equal protection?

:Ill   The 1997 Cornmission regulation at issue here reads: "Big game hunting pribileges

on Indian Reservations are limited to tribal members only." While a copy of the regulation

at issue was not entered into the trial court record by either party, the parties stipulated to this

language in the District Court proceedings. I This regulation was promulgated pursuant to

5 87-1-304(l)(a)(i), MCA, which reads:       "The comnlission may. . . lix seasons, bag limits,

possession limits, and season limits." As mentioned, Shook was prosecuted for hunting

during a closed season in violation of 5 87-1-304, MCA.




      :We note here that the corresponding 2002 regulation is substantially similar.
Under the 2002 "Big Game Hunting Regulations, Preparing for Your Hunt, Closed
Areas" the corresponding regulation reads:
      Indian Resetvations are limited to Tribal members only for big ganie hunting
      privileges unless otherwise provided for by agreements between the State of
      Montana and a Tribal Gotemnient.
"12    bhooh first asserts that the state's brg game hunttng closure to non-tr~bal
                                                                                 members on

reservations is an unconstitutional violation of equal protccrion because it distinguishes

betbteen tribal members and non-tribal members on the basis of race. The State and the

Tribe.; counter that laus that distinguish bctween persons based on tribal membership have

long been held constitutional under equal protection rcquircments becausc the distinction is

political rather than racial. The District Court agreed with the State and held that tribal

membership was a kalid political classification.

713    We agree with the State, with the Tribes, and with the District Couit. The United

States Supreme Court has already explicitly considered whether laws that distinguish based

on tribal membership >iolate equal protection in hfortotl v. Muncuri (1974), 417 U.S. 535,

93 S.Ct. 2474,4l L.Ed.2d 290. ln that case, the Court addressed Bureau of Indian Affairs

employment preferences for Indians and held that the preferences u ere not unconstitutional

classifications. The Court stated:

       Literally every piece of legislation dealing with Indian tribes and reservations
       . . . single out for special treatment a constituency of tribal Indians living on
       or near reservations. If these laws; derived from historical relationships and
       explicitly designed to help only Indians, were deemed invidious racial
       discrimination, an entire Title of the United States Code (25 U.S.C.) would be
       effectively erased and the solemn commitment of the Government toward the
       Indians would be jeopardized.



       . . . The preference is not directed towards a "racial" group consisting of
       "Indians"; instead, it applies only to members of "federally recognized" tribes.
       This operates to exclude many individuals who are racially to be classified as
       "Indiails." In this sense, the preference is political rather than racial in nature.
,\forruiz, 417 U.S. at 552-54, 94 S,Gt. at 2483-85. The Court went on to hold that laws that

afford Indians special treatment are constitutioaal as long as those laws can bc tied rationally

to the fulfillment of the unique federal obligation toward Indians. .Llononl 41 7 U.S. 555,
                                                                                     at

04 S.Ct, at 2385. See also United Stare.. v. Antelope (1977), 430 C.S. 641; 647, 97 S.Ct.

1-395, 1399, 51 L.Ed.2d 701 (federal criminal code applicable in Indian country docs not

.
iiolate equal protection).
 .



7/14    The State of Montana is required to follow this federal precedent by thc express terms

of both our own Constitution and the federal enabling act establishing Montana as a state.

Specifically, following the Preamble to the Montana Constltuhon, Article I, the Compact

With the United States, requires that the State ab~de "'the agreement and declarat~ol~
                                                    by                              that

all lands oaned or held by any Indian or Indian tribes shall remain under thc absolute

jurisdiction and control of the congress of the United States." See also Act of Fcb. 22,1889,

25 Stat. 676. Based on this requirement, we have previously held that Indtan treaties are

"regarded as a part of the law of the state as much as the state's own laws and Constitution[,]

[are] effective and binding on [the] state legis!ature[] . . . [and are] superior to the reserved

                                                  State v. klcC1ur.e (1954), 127 Mont. 534,
powers of the state, including the police po~~ver.''

530-401268 P.2d 629, 63 1. See also Stnie I>. Stasso ( 1 977), 172 blont. 242, 246, 563 P.2d

562, 564 (treaty provisions "must be considered as a reservation by the Indians, rather than

a grant by the federal government").

rj 15   Consequently, federal indian law regarding the rights of Indians is binding on the

state. Therefore, the state equal protection guarantee under Article 11, Section 4, must allow

                                                6
for state class~fications                               IC those
                        based on trtbal n ~ c m b e ~ s h ~ p class~ficatrons ratlonail! be
                                                                            can

tied to the hlfiilrnexi of the unique federal, and consequent state. obligation toward Indians.

Cj' Zernpel, 282 Mont. at 430-33, ' 3 P,2d at 662-64 (failure of statc workers' compensation
                                   98

fund to coler workers under tribal jurisdiction does not violate equal protection) Indecd,

our o n u Constitution makes a distinction regarding Indians in Article X. Section l(2) ("The

state recognizes the distinct and unique cultural heritage of the American Indians and is

committed in its educational goals to the preservation of their cultural integrity.").

'16    Therefore, we need only address whether the state regulation that prohibits non-tribal

rnembers from hunting big game on Indian reservations is rationally tied to the fulfillmcnt

of the unique obligation touard Indians. We hold that it is. There are selcn Indian

reservations in Montana each established by treaty and agreements with the federal

government. The majority of the treaties establishing the reservations reserve some type of

hunting or fishing rights to the respective tribes. See, e.g., Treaty with the Flatheads, Etc.

of July 16, 1855? 12 Stat. 975 (commonly called the Hellgate Treaty). At the same time, we

have a!ready held that the state can regulate the hunting activities of non-tribal members on

reservations nnless precluded by an act of Congress or tribal self-governance matters. State

ex r-el. Nepstnd v. 1)ulrielson (1967), 149 Mont, 438, 443, 427 P.2d 689, 692.           See also

                   States (1981), 450 U.S. 544,564, 101 S.Ct. 1245, 1258,67 L.Ed.2d 493.
.Wontuna v. Cii~ited

117    Accordingly, under Article I, the State, and in this case the 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 regulation at issue here deals with the state's

                                               7
obligation by simply prohibiting hunting by non-tribal members on reservations. 'This is an

       rational means to prcserve wild!ife populations for hunting by Indians. Therefore,
cnti~eiy

the regulation is rationally related to the federal; and consequent state, obligation to recognize

tribal hunt~ng
             privileges.

718    Despite the stra~ghtforwardapproach of the regulat~on,Shook asserts that the

regulation is arbitrary because no studies have been done to show if big game wildlife

populations on the reservations are over hunted by tribal members. Shook further asserts that

conservation purposes could be accomplished by other legitimate means. While there may

be other means to conserve the big game wildlife, we simply disagree this invalidates the

regulation. When a law is assessed for a rational basis, exact precision or efficiellcy is not

necessary. See Buirlwiiz v. Fish & Gai?zeComrn 'n (1978), 436 U.S. 371,390,98 S.Ct. 1852,

1864, 56 L.Ed.2d 354 ("That [Montana] might have furthered its underlying purpose more

artfully, more directly. or more completely, does not warrant a conclusion that the method

it chose is unconstitutional."); McClanatlzarz v. Si~1~t11(1980), Mont. 56,67-68,606 P.2d
                                                              I86

507, 513. .As already stated, the regulation ~t issue here is rationa!!y re!ated to its objective

and is therefore constitt~tionally
                                 permissible.

*19    In addition, we agree with the State that the District GOLLI-t
                                                                   properly denied Shook's

request for an ev~dentiary
                         heanng regard~ng argument that the regulation violated equal
                                        her

protection. Such a hearing *as not necessary to decide the issues of law presented by Shook

to the trial court and this Court. Further, although Shook alleges in passing that the

regulation is 11ot enforceduniformly across the reservations, Shook did not properly preserve

                                                X
this issue for appeal. The general rule is that issues not raised before the trial court and new

legal theories are not considered by this Co~rrt appeal because it is unfair to fault thc trial
                                               on

court on an issue   it   was never given an opportunity to consider. Unified iildus., inc. v.

h s l e y , 1998 bf'r 135.li 15,280 Mont. 2 5 5 , l 15, 961 P.2d 100,q 15.

720    Finally, we note that while we agree with the r ~ m i c ~ r s
                                                                 Montana-Wyoming Tribal

Judges Association that the treaties and agreements involving the seven reservations in

Montana are each unique, we do not agree that this prevents the state from designing a big

game hunting regulation regarding Indian reservations that applies statewide. Indeed, the

reg~lationat Issue scrcies to assure that big game populations on all the resenrations are

preserved. See also 2002 Big Game Hunting Regulations, Preparing for Your Hunt, Closed

Areas (regulation provides for agreements specific to each tribe).

721    2. Did the District Court properly conclude that the state's big game
       hunting closure to non-tribal members on Indian reseriations is not an
       unlawful exercise of the powers of the Commission?

722    Shook next asserts that the regulation is an unauthorized exercise of regulatory pouer

by the Commiss!on because there is no statute directly authorizing the rcgulatlon and because

there is no corresponding legislative h~storyregarding tribal hunting issues or mildlife

consen ation on the resenations. Conscquentlq, Shook argues that the rcgulation exceeds

the scope of 4 87-1-304(1)(a), MCA. Shook also asserts that the regulation contradicts state

law requiring consent of the owner to close their land to hunting. The State and the Tribes

assert that the Commission had proper authority to promulgate the regulation and that the

Commission was required to recognize the Indian rights protected by federal law in designing

                                                9
its regulations. Thc State furihcr asserts that the consent laws regarding wildlife rctugcs are

not at issue in this case and that closed seasons apply 1-cgardlcss of land ownership.

7273    The District Court held that regulating hunting seasons was within the scope of the

Conitnissroli, that the Commlsston regulation docs not create a rcfuge, that Shook did not

hunt on her obn land and therefore could not ralsc the issue of the consent la-vcs. and that

legislative intent expressing that Commission regulations must recognize federal law was

unnecessary. Further, the District Court stated that 18 U.S.C. Cj 1165, gave the Tribes

exclusive authority to regulate hunting on the reservation.

12.1.   We agree with the District Court, with the exception of its discussion of 18 U.S.C.

9   1165 as discussed below.

rj25    Under $ 87-1-301(1)(a), .VCA, the Commission is charged with setting "policies for

the protection, preservation, and propagation of the wildlife . . . of the state and for the

fulfillment of all other responsibilities of the depaihnent as provided by law." See also $ 87-

1-301(l)(b), MCA. In fulfilling this directive, the Comnlission must promulgate regulations

that are in accordance with general requirements of state law. As mentioned above, Indian

treaties are effectively a binding part of state lahv. Indeed, we have previously held that the

state is required to recognize Indian rights despite the fact that those rights are not

specifically mentioned. Stale ex ?,el. Gr-eelJ v. Cor?fideraterl Salislz & Kootenai Tribes

j1085), 219 Mont. 76, 95, 712 P.2d 754, 765-66. In Greefy, we stated:

        We recognize that the Water C?seAct of Montana does not explicitly state that
        the Water Cout-t shall apply federal law in adjudicating Indian resemed rights.
        However, we conclude that is not fatal to the adequacy of the Act on its face.
       iVe hold that state courts are required to follotv federal law with regard to
       those water rights.

Greeiy, 219 Mont. at 05, 712 P.2d at '765-66.

"?O
 tiA   Because of the suprewicy of federal law on matters related to Indian treaties: v:e have

also held that state statutes do not violate equa! protectiors in excluding Indians, even when

the exclusion is not specifically mentioned. Zenzpel, 282 Mont. at 430, 938 P.2d at 662

(plaintiff was excluded from state Uninsured Employer's Fund coverage by controlling

principles of federal law regarding state jurisdiction over Indian reservations, rather than by

the statutory definition itself).

1/27   Therefore, contrary to Shook's assertions, it is not necessary that rj 87-1-301, MCA,

or 5 87-1 -304, MCA, specifically mention India11 hunting rights in order for the Commission

to have proper authority to promulgate a regulation that recognizes those rights under state

law. Similarly, it is not ncczssary that tbc Co~nnlissionbe directed 5 !cgistative intent,
                                                                     5

studies, or committee minutes specific to the issue in order to recognize Indian hunting

rights. Accordingly, we hold that the District Court properly concluded that the Coinmission

did not exceed its powers in promulgating the regulation closing big game hunting pursuant

to its directive to set seasons under $ 87-1-304(l)(a), MCA, or rj 87-1-301(1). MCA.

728    We note in making this holding that in addition to the fact that the Corslniissio~n
                                                                                         must

recognize Indian hunting privileges when promulgating regulations: the Commission must

also take into account $ 87-1-228, MCA, ~vhich
                                             explicitly recognizes the tribal hunting rights

relative to the Flathead Reservation. Further, the Commission must also take into account
litigation in Montana's federal District Court regarding the issue ofjririsdiction to regulate

hunting on thc Flathead Reservation. See Gji?,'>lr'erczted Scrlish & Koorenui Tribes v. ,%ate

( I 990), 750 F.Supp. 446, and subsequent Order in CV 90-49-M-CCL (May 8, 1991). This

litigation specifically recognized that the issue of jurisdiction to regulate hunting on

reservations was extremely complex and best left to resolution by agreement between the

State and the Tribe. See Order in CV 90-49-M-CCL (May 8,1991) (staying the proceedings

for the duration of the settlement agreement between the State and the Tribe which is still in

effect). Therefore, in the case of the Flathead Reservation, the regulation at issue here is

specifically required by that agreement.

729    in support of her argument, Shook cites cases in which we have found ail agency

in~properlyexceeded the scope of an authorizing statute. However, those eases are all

distinguishable simply because none involve additional laws that the agency was required to

acknowledge in designing the regulation. See; e.g., Safeway, Inc. v. h4ontalia Petroleu~?~

Release CofnpensationBd. (1997), 281 Mont. 189,931 P.2d 1327 (administrative rule that

required that tank be in place when tank release was discovered, added additional

requirements to statute that invalidated rule).

730    We also agree with the State that the District Court was correct in holding that 8 87-1 -

305, ,MCA, which allows the Commission to establish wildlife refuges on private land with

lai-~downer
          coi~sent, not relevant to Shook's case. First, as the D~strict
                  was                                                  Court stated, the

closed season m thts case does not create a refuge. Second, contrary to Shook's positton, this

ease does not present the issue of the rrghts of someone huntlng on their oun land because

                                              12
it is undisputed that she was not hunting on her o~vnland. Therefore; the District Court

conectly hcId that Shook's conviction under thc reguiation did nut conflict with tj 87- i -305,

MC'A.

731     Further, as mentioned, we will affim~ trial court when it rcaches the correct result
                                            the

for the wrong reason. In this case, the court cited 18 C.S.C. tj 1 165; for the proposition that

the Tribes have exclusive jurisdiction to regulate hunting on the reservation. However, that

slatule is inapplicable to the case at bar because Shook was charged in state court with

violating 3 87-1-304, MCA; she was not charged in federal court with a violation of federal

law. Therefore, because the District Court correctly concluded that the regulation does not

violate equal protection and correctly concluded that the Commission did not exceed its

authority in promulgating the closed season on Indian reservations, we affirm the court's

result even though it erred in citing 18 U.S.C. 5 1 165.

132     Finally, Shook asserts on appeal that she waived her right to trial only for the

determinations at issue here and that if this Court concludes the District Court properly

denied her motion to dismiss, she is still entitled to a trial on the merits. Shook quotes the


        '18 G.S.C. 5 1165, reads:
        Whoc\-er, without lawful authority or permission, willfully and knowingly
        goes upon any land that belongs to any lndian or Indian tribe, band, or group
        and either are held by the United States in trust or are subject to a restriction
        against alieilation imposed by the Gnited States, or upoil any lands of the
        United States that are resewed for Indian use, for the purpose of huiiti~~g,
        trapping, or fishing thereon, or for the removal of game, peltries, or fish
        therefrom, shall be fined under this title or imprisoned not more than ninety
        days, or both, and all game, fish, and peltries in his possession shall be
        forfeited.
transcript at length in order to demonstrate that she did not waive her right to trial and notes

that the stipulated facts approved by the court specifically reserve her right to "litigate the

below facts" should she lose the nlotion to dismiss.

433    The State asserts that the issue of .whether Shook retained her right to trial is not

properly before the Court. We agrec. Shook initially pleaded guilty in justice court and

pursuant to ij 46-1 7-203(2),MCA, she waived her right to trial on the merits in the District

Court. Consequently, the transcript of the proceedings in the District Court regarding this

issue is irrelevant. Therefore, Shook is not entitled to a trial on the merits. Further, the

record establishes that Shook knowingly pleaded guilty to undisputed facts because she

wished to litigate the questions of law regarding the regulation. Finally, she made no motion

to withdraw her plea, so the issue was not preserved.

                                     IV. CONCLUSION

7\34   Because the District Court properly concluded that the Commission regulation closing

Indtan resenations to big game hunting by non-tribal members was a constitutionally

permissible exercise of authority utthin the statutory powers of the Commission, we affirm.
