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WEDNESDAY, MAY 29, 2002

An Idaho court on Tuesday refused to overturn the criminal convictions of three men who claimed protection under a 19th century treaty.

In a unanimous decision, the state Court of Appeals held that hunting rights under the 1855 Nez Perce Treaty do not extend to privately held, undeveloped land. Writing for the majority, Judge Karen Lansing said "open and unclaimed" areas are limited to those in public ownership.

"Land which is privately owned," Lansing wrote, quoting an Idaho Supreme Court opinion, "is not open and unclaimed."

The ruling follows disputes over hunting rights that Idaho courts have been called to resolve over the years. Another case involving the Nez Perce treaty determined that federal forest land fell under the "open and unclaimed" definition.

But another one involving a member of the Kootenai Tribe limited the reach of treaty rights. That decision, which covered private land, set the path for yesterday's ruling against Jeffrey Jackson of the Nez Perce Tribe.

Jackson and two friends were charged for violating state game laws. They were caught in possession of two elk carcasses, taken out of hunting season from timber land owned by a private company.

The trio asserted a treaty rights defense by invoking federal Indian law principles regarding ambiguous phrases in treaties or statutes. They argued that "open and unclaimed" lands should be interpreted to mean undeveloped areas like the one in question.

The court shut down that argument, citing prior decisions. "We conclude that the treaty interpretation urged by the defendants is foreclosed by decisions of the Idaho Supreme Court," Lansing wrote.

Additionally, the court rejected a "mistake of fact" defense. Jackson and his friends asserted their convictions were unlawful because they believed they were on public land.

But the court said the defense doesn't apply in the case at hand because the conviction was based on "act of possession" not a "mental element of the crime," Lansing wrote in the opinion joined by Chief Justice Daniel R. Perry and Judge Sergio M. Gutierrez.

Get the Case:
Idaho v. Simpson/Jackson Nos. 27008, 27012, 27013 (5/28)

Relevant Links:
Nez Perce Tribe - http://www.nezperce.org

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