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State Law on Reservation Hunting Challenged

A Billings man has filed a federal lawsuit against the state, challenging a hunting rule that bans non-tribal members from hunting big game on lands within Montana's American Indian reservations.

Randy V. Roberts claims the law is a violation of his constitutional rights because he is being denied the ability to hunt on private property inside reservation boundaries based solely on his race.

''We do not believe there is any constitutional reason for Montana to engage in that kind of discrimination,'' said Roberts' attorney, William Perry Pendley of the Denver-based Mountain States Legal Fund.

Bob Lane, chief legal counsel for the state Department of Fish, Wildlife and Parks, said Monday that the agency had not been served with the lawsuit yet, and he had only briefly reviewed Roberts' claims. He said he believed most of the issues Roberts raised had been settled in a previous case, ''although I suspect the plaintiff will argue that there are differences.''

Roberts operates a commercial bird shooting preserve licensed by the state on 1,500 acres of deeded, non-Indian fee land owned by his mother within the boundaries of the Crow Indian Reservation.

Although his mother has granted permission to hunt on the property, Roberts has not hunted big game - elk, deer and antelope - for 35 years because of the Montana regulation, the suit said.

The state Fish and Game Commission made a rule some 50 years ago that big-game hunting on any Indian reservation by non-Indians is illegal, regardless of whether the land within the reservation boundaries is owned by the tribe, tribal members or non-Indians. The rule does not apply to bird hunting by non-tribal members.

Most of the reservation land is held in trust by the federal government for the Crow Tribe and its members. But about one-third of the land is owned either by the state of Montana or by non-Indians. Non-Indian landowners own their land ''in fee,'' which means, among other things, that they are subject to state and local taxes.

In 2002, the state Supreme Court ruled unanimously in a separate case that the state rule banning non-Indians from hunting within reservation boundaries was legal.

That lawsuit was filed by Sandra Shook, who was cited after she killed a deer on her neighbor's private property within the Flathead Indian Reservation. Shook acknowledged she was aware of the restriction, but had permission from her neighbor to hunt there and argued the regulation violates the constitutional guarantee for equal protection of the laws by distinguishing between tribal and non-tribal members on the basis of race.

The court, however, concluded that the prohibition is a rational method of preserving wildlife for hunting by American Indians. The justices also said the restriction fulfills the state's obligation to recognize tribal hunting privileges established in federal law and treaties between the tribes and the federal government.

The U.S. Supreme Court declined to hear the case, saying it believed the state's high court had correctly decided the case.

Pendley said Roberts' case is different because he was never cited for a hunting violation and the case was filed in federal court.

In addition, he said, the issues before the state court in the Shook case involved federal law and the U.S. Constitution.

''We believe the better forum for addressing both of those is the federal district court and the federal court of appeals,'' he said.

Named as defendants in the suit are the state Department of Fish, Wildlife and Parks and its director, Jeff Hagener; the state Fish, Wildlife and Parks Commission and its members; Gov. Brian Schweitzer and the state of Montana. Continue to learn more about hunting, please visit Helen Air.

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