A Matter of Boundaries 

Native rights, Glacier borders back on the table

Two Blackfeet tribal members accused of illegally killing bighorn sheep in 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.

According to U.S. District Court documents, 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 are charged with conspiracy to violate the Lacey Act, a federal wildlife protection statute, and with planning to sell parts of animals they knew were killed within the park, where hunting is prohibited. The men don’t deny killing the bighorns, but argue they had a legal right to hunt in the area because aboriginal rights to do so are reserved by the Blackfeet Tribe. The case is scheduled for trial Oct. 30 before Judge Donald Molloy of Missoula.

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 no subsequent court decisions have specifically altered that right. The agreement, which altered the original boundaries of the reservation, was proposed by the federal government to advance mineral extraction in the area before park status was granted by Congress in 1910. Also at issue is the exact borderline of the park. “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,” Wilson writes.

To bolster their argument, Wilson and Rhodes cite a 1974 federal court decision involving a Blackfeet tribal member who refused to pay a fee when entering the park. The defendant argued that 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 about the same time tried to test the agreement 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 that were ceded to white settlers. Part of that case 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 has blasted the defense contentions.

While an 1887 agreement between the Blackfeet, Gro 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 advanced hunting rights in the area Peterson and Hohmann were hunting until Glacier Park was formally established, he says.

“Under relevant land law, lands reserved for special purposes are not considered public lands,” McLean writes. “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 notes, relinquished enforcement rights in 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 in August.

So far, both Peterson and Hohmann have rejected plea agreement offers from federal prosecutors, and the Blackfeet Tribe, according to a recent filing, continues to maintain that the charges should be dropped. As punishment, each felony count carries up to five year’s imprisonment and up to $250,000 in fines upon a conviction. “This is a regulatory issue over which the Blackfeet Tribe has retained jurisdiction,” say tribal attorney Troy Woodward and Maylinn Smith of the University of Montana’s Indian Law Clinic.

Woodward and Smith, who were invited by Molloy to file “friend of the court” briefs, also contend the 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 officials 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.”

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