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In TheSupreme Court of the United States

TROY BUTLER,Petitioner,

V.

STATE OF MONTANA,Respondent.

On Petition for Writ of Certiorari to the MontanaSupreme Court

PETITION FOR A WRIT OF CERTIORARI

Jason ArmstrongJennifer Wendt Bordy

Counsel of Record611 West Main Street

Bozeman, Montana 59715(406) 587-2084

(406) 922-2224 (fax)armstronglaw@mac.comAttorneys for Petitioner

BLANK PAGE

QUESTION PRESENTED FOR REVIEW

This Court determined in New Mexico y.Mesca]ero Apac1~e Tribe, 462 U.S. 324, 338, 103 S.Ct. 2378, 2388-89, 76 L. Ed. 2d 611 (1983), that theNavajo Nation is a sovereign nation and has solejurisdiction over its wildlife when this Court held,"[T]he Tribe’s authority to regulate hunting andfishing preempts State jurisdiction."

The New Mexico Supreme Court decision,State y. Warner, 71 N.M. 418, at 421-22, 379 P.2d66, at 68-69 (1963), is directly on point in thismatter. In Warner the New Mexico Supreme Courtheld that New Mexico state courts do not havejurisdiction over criminal offenses involving non-Indians and either Indians or Indian property.

The question presented is whether the justiceof the peace, presiding over a court of no record,exercised jurisdiction over a sovereign nation incontravention of New Mexico v. Mescalero Apacl~eTribe, 462 U.S. 324, 338, 103 S. Ct. 2378, 2388-89,76 L. Ed. 2d 611 (1983), and federal statutesconferring jurisdiction solely on the Navajo Nationby preventing Petitioner from hunting in the NavajoNation.

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ...............i

TABLE OF CONTENTS ...........................................ii

TABLE OF AUTHORITIES ......................................iv

PETITION FOR WRIT OF CERTIORARI ..............1

OPINIONS AND ORDERS ENTERED IN CASE ... 1

JURISDICTION ........................................................2

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED ....................................2

STATEMENT OF THE CASE ..................................5

REASONS FOR GRANTING THE WRIT ................9

I. The Montana Supreme Court’s Affirmationof the District Court’s - and Justice Court’s -Assertion of Montana Jurisdiction Into theNavajo Nation Violates This Court’s Decisionin New Mexico y. Mesca]ero Apac1~e Tribeas well as United States Code ...........................9

II. This Case Represents a Recurring Questionof Exceptional Importance Warranting theCourt’s Immediate Resolution .........................12

CONCLUSION ..........................................................15

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TABLE OF CONTENTS -- Continued

APPENDICES

December 4, 2012, Opinion of the MontanaSupreme Court, State y. Butler ......................App. 1

March 13, 2012, Montana Fifth JudicialDistrict Court Judgment, and OrderFinding Violation of Probation andImposition of Suspended Sentence .................App. 7

January 19, 2012, Montana Fifth JudicialDistrict Court Order Denying Motion toVacate Revocation and Condition ofSentence and for Hearing .............................App. 10

April 1, 2011, Beaverhead County JusticeCourt Order Revoking SuspendedSentences ........................................................App. 20

March 15, 2010, Beaverhead County JusticeCourt Judgment/Order ..................................App. 25

January 15, 2013, Order of the MontanaSupreme Court (Denying Petition forRehearing) ......................................................App. 29

§ 87-1-102, M.C.A ..............................................App. 31

18 U.S.C. § 1162 ................................................App. 32

September 26, 2011, Notice of Appearancefor Jennifer Bordy ..........................................App. 35

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TABLE OF AUTHORITIES

Cases

New Mexico y. Mescalero Apac1~e Tribe,462 U.S. 324 (1983) ........................... i, 9, 10, 11, 12

Confedera ted Salish and KootenaiTribes of the Flathead IndianReserva tion v. State of Mon t.,750 F.Supp. 446, 448 (D. Mont.1990) ....................................................................9, 10

Menominee Tribe o£Indians y. U.S.,391 U.S. 404 (1968) ..........................................12, 14

Quenchan Tribe o£Indians y. Rowe,350 F.Supp. 106 (S.D. Cal.1972) ..................................................................12, 13

State y. Butler, 2012 MT 278N, __ Mont.__., __ P.2d __, 2012 WL601827 ........................................................................1

State v. Warner, 71 N.M. 418, 379 P.2d66 (1963) ........................................................i, 12, 13

U.S.y. Cleveland, 503 F.2d 1069 (9thCir. 1974) ..........................................................12, 13

U.S.v. Greyfox, 727 F.Supp. 727 (D.Or.1989) ..................................................................12, 14

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TABLE OF AUTHORITIES -- Continued

Federal Statutes

18 U.S.C. § 1151 ....................................................2, 11

18 U.S.C. § 1162 ......................................3, 14, App. 32

18 U.S.C. §1165 .....................................................3, II

28 U.S.C. § 1257 (a) .....................................................2

State Statutes

§ 2-1-102, M.C.A .........................................................3

§ 87-1-102, M.C.A. (2009) .....................4, 5, 6, App. 31

§ 87-3-304, M.C.A ....................................................4, 5

PETITION FOR WRIT OF CERTIORARI

Petitioner Troy Butler petitions the Court fora Writ of Certiorari to review a final judgment of theMontana Supreme Court affirming the district andjustice court orders asserting Montana jurisdictioninto the Navajo Nation.

OPINIONS AND ORDERS ENTERED INCASE

Except for the opinion of the MontanaSupreme Court entered on December 4, 2012, noneof the other orders and opinions were published.They are all included in the appendices andnecessary for this Court’s review.

The opinion of the Montana Supreme Courtwas not reported but is available at State y. Butler,2012 MT 278N, Mont. __, P.2d ,2012 WL 601827. The Montana Supreme Courtentered its Order denying the Petition for Rehearingon January 15, 2013. App. 29.

The Beaverhead County Justice Court enteredits Order Revoking Suspended Sentences (alsodenying the Motion to Dismiss which raised thejurisdiction issue) on April 1, 2011. App. 7. TheDistrict Court of the Montana Fifth Judicial Districtentered its Order Denying Motion to VacateRevocation and Condition of Suspended Sentenceand for Hearing on January 19, 2012. App. 10. It

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entered Judgment and Order Finding Violation ofProbation and Imposition of Suspended Sentence onMarch 13, 2012, basing its decision on the fact thatPetitioner was prevented from hunting in thesovereign Navajo Nation and again re-imposing suchprohibition. App. 7.

JURISDICTION

The renegade Montana Supreme Courtentered its decision on December 4, 2012. Petitionerfiled a Petition for Rehearing that was denied onJanuary 15, 2013. App. 29. This Court’s jurisdictionis invoked pursuant to 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORYPROVISIONS INVOLVED

18 U.S.C. § I151:

Except as otherwise provided in sections1154 and 1156 of this title, the term "Indiancountry", as used in this chapter, means (a)all land within the limits of any Indianreservation under the jurisdiction of theUnited States Government, notwithstandingthe issuance of any patent, and, includingrights-of-way running through thereservation, (b) all dependent Indiancommunities within the borders of the

United States whether within the original orsubsequently acquired territory thereof, andwhether within or without the limits of astate, and (c) all Indian allotments, theIndian titles to which have not beenextinguished, including rights-of-wayrunning through the same.

18 U.S.C. § 1162: App. 32

18 U.S.C. § 1165:

Whoever, without lawful authority orpermission, willfully and knowingly goesupon any land that belongs to any Indian orIndian tribe, band, or group and either areheld by the United States in trust or aresubject to a restriction against alienationimposed by the United States, or upon anylands of the United States that are reservedfor Indian use, for the purpose of hunting,trapping, or fishing thereon, or for theremoval of game, peltries, or fish therefrom,shall be fined under this title or imprisonednot more than ninety days, or both, and allgame, fish, and peltries in his possessionshall be forfeited.

§ 2-1-102, M.C.A.:

The sovereignty and jurisdiction of this stateextend to all places within its boundaries as

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established by the constitution, exceptingsuch places as are under the exclusivejurisdiction of the United States.

§ 87-1-102(1), M.C.A. (2009): App. 31

§ 87-3-304, M.C.A. (2009):

(1) Every resident and nonresident musthave obtained permission of the landowner,the lessee, or their agents before taking orattempting to take nongame wildlife orpredatory animals or hunting on privateproperty.

(2) Except for hunting big game animals onprivate property, a person who violates thissection shall, upon conviction for a firstoffense, be fined an amount not to exceed $25.

STATEMENT OF THE CASE

On February 8, 2010, Mr. Butler was chargedin Beaverhead County, Montana, with two counts ofHunting Without Landowner Permission, inviolation of § 87-3-304, M.C.A. The sentencingstatute in effect at the time of the sentencing was §87-1-102, M.C.A. (2009). He pled guilty to bothcounts on March 5, 2010. Justice of the Peace CandyHoerning ("Hoerning") orally pronounced sentenceand then entered a written Judgment/Order onMarch 15. App 25. Hoerning sentenced Mr. Butlerpursuant to § 87-1-102, MCA (2009). Paragraph 4 ofthe written Judgment/Order provided in part that,"[T]he Defendant, TROY G. BUTLER, shall lose hisprivileges to hunt, fish and/or trap in the State ofMontana, and/or compact states, to run concurrentwith the loss of privileges imposed in the State ofUtah until December 15, 2019." App. 25.(Emphasis in original.)

On January 11, 2011, the State filed aPetition for Revocation of Suspended Sentence basedupon Mr. Butler’s alleged participation in a coyotehunt taking place on sovereign Navajo Nation landlocated outside of the State of Montana. On March16, 2011, the Justice Court found that Troy violatedthe sentence and a condition of that sentence - thathe not hunt anywhere at anytime with anyone - byhunting on sovereign Navajo Nation land. The courtpronounced sentence again at the conclusion of therevocation hearing and stated that Mr. Butler couldnot hunt anywhere at anytime with the condition

that he not hunt with anyone. The court entered awritten Order Revoking Suspended Sentences onApril 1, 2011. App. 20.

On March 16, 2011, Mr. Butler appealed tothe District Court for review. Thereafter, Mr. Butlerfiled a brief arguing that the sentence preventinghim from hunting anywhere at anytime or withanyone exceeded the scope of the court’s sentencingauthority under § 87-1-102, M.C.A (20.09).

On November 8, 2011, the District Court helda hearing on the appeal during which time the Courtheard testimony regarding the sentence thatHoerning imposed and then re-imposed on Mr.Butler following his revocation hearing.

The question that Mr. Butler put to theDistrict Court in his brief was whether the sentenceimposed by Hoerning - at the first sentencinghearing and again at the revocation hearing - waslegal. Hoerning testified, because she presides overa court of no record, that her oral pronouncement ofthe sentence was that Mr. Butler "shall not huntanywhere, any time, period."

On January 19, 2012, the District Courtissued a written order. App. 10. The Court heldthat it could not review the legality of the sentenceimposed at the original sentencing - or again at therevocation hearing - because there was no specificauthority for such review, that the standard was de

novo, and that the time for review had run. TheCourt set a date for a revocation hearing.

On March 6, 2012, the District Court held ahearing on the Petition to revoke. The Courtrevoked Mr. Butler’s sentence based on thedetermination that Mr. Butler hunted coyote onsovereign Navajo Nation land, outside of the state ofMontana, in violation of Hoerning’s oral sentenceand condition of sentence that Mr. Butler could nothunt anywhere, at anytime, with anyone. TheDistrict Court then orally pronounced that Mr.Butler could not hunt game or non-game animals,fish, birds, amphibians, reptiles, or anything with aheartbeat, including lawyers. The Court went on tostate that it was not imposing any sentence morestringent than that imposed by the Justice Court butsimply re-imposing that which Hoerning imposed inthe first instance.

The District Court issued a written Judgmentand Order on March 13, 2012. App. 7. The DistrictCourt reiterated that Mr. Butler is, "prohibited fromhunting, trapping, and fishing anywhere oraccompanying anyone doing so until December 15,2019."

Mr. Butler timely filed an appeal with theMontana Supreme Court arguing that the sentencesissued by the courts below were illegal because theyinvaded the sovereignty of the Navajo Nation andexceeded the courts’ jurisdictional authority asauthorized by Montana law.

The Montana Supreme Court neglected to ruleon the primary issue of jurisdiction, held that Mr.Butler was hunting in New Mexico despite astipulation by the State that Mr. Butler was actuallyinside the Navajo Nation, and held that the huntingrestriction was a reasonable condition of hissentence.

Mr. Butler timely filed a Petition forrehearing on the basis that the Montana SupremeCourt: 1) Rested its decision upon the incorrect factthat Mr. Butler hunted in New Mexico when he didnot; 2) That the Montana Supreme Court eitherignored the question of whether or not the JusticeCourt and then the District Court had the power -the jurisdiction - to prevent Mr. Butler from huntingon Navajo Nation soil or tacitly approved of theextension of power of the Montana courts tojurisdictions outside of Montana; and 3) theMontana Supreme Court’s decision conflicts with thesentencing statute’s limitation on a sentencingcourts power to impose restriction on a defendantoutside of the state of Montana.

On January 15, 2013, the Montana SupremeCourt denied the Petition for Rehearing. App. 29.

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REASONS FOR GRANTING THE WRIT

The Montana Supreme Court’sAffirmation of the District Court’sand Justice Court’s Assertion ofMontana Judicial Authority Into theNavajo Nation Violates This Court’sDecision in New Mexico v. MescaleroApache Tribe As Well As United StatesCode.

The Montana Supreme Court has againdecided to ignore United States Supreme Court caselaw directly on point and allow a sentencing court toimpose its jurisdiction into the Navajo Nation incontravention of established precedent, U.S. code,and despite that fact that the Navajo Nation located,in part, in New Mexico

This Court has held, and the District Court forthe State of Montana has recognized, that Indiantribes have control over the resources on their land,including wildlife. See, e.g. New Mexico v. MescaleroApache Tribe, 462 U.S. 324, 337, 103 S.Ct. 2378,2388, 76 L.Ed.2d 611 (1983) and ConfederatedSalish and Kootenai Tribes of the Flathead IndianReservation v. State of Mont., 750 F. Supp. 446, 448,(D. Mont. 1990). In Confederated Salish, the DistrictCourt held that:

The Montana Supreme Court acknowledgedthis exclusive right of the Tribes to hunt andfish within the exterior boundaries of the

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Reservation in State v. McClure, 127 Mont.534, 268 P.2d 629 (1954), and the Court ofAppeals for the Ninth Circuit also recognizedthe importance of these particular treatyrights in Bd. of Control of Flathead, et al.Irrigation Districts v. United States, 832 F.2d1127 (9th Cir.1987), cert. denied, 486 U.S.1007, 108 S.Ct. 1732, 100 L.Ed.2d 196 (1988),and in Confederated Salish & Kootenai Tribesv. Namen, 665 F.2d 951 (9th Cir.1982) cert.denied, 459 U.S. 977, 103 S.Ct. 314, 74L.Ed.2d 291 (1982).

750 F. Supp. 446,448.

In Mescalero this Court held:

[T]he Tribe’s authority to regulate huntingand fishing preempts State jurisdiction. It isimportant to emphasize that concurrentjurisdiction would effectively nullify theTribe’s authority to control hunting andfishing on the reservation. Concurrentjurisdiction would empower New Mexicowholly to supplant tribal regulations. TheState would be able to dictate the terms onwhich nonmembers are permitted to utilizethe reservation’s resources. The Tribe wouldthus exercise its authority over thereservation only at the sufferance of the State.The tribal authority to regulate hunting andfishing by nonmembers, which has beenrepeatedly confirmed by federal treaties and

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laws and which we explicitly recognized inMontana y. United States, supra, would havea rather hollow ring if tribal authorityamounted to no more than this.

New Mexico v. Mescalero Apache Tribe, 462 U.S.324, 338, 103 S. Ct. 2378, 2388-89, 76 L. Ed. 2d 611(1983).

In this case, the Montana Justice and DistrictCourts have determined that a non-member may nothunt in the Navajo Nation thereby supplanting theNation’s jurisdiction and "effectively nullify[ing] theTribe’s authority to control hunting and fishing onthe reservation." The Montana Supreme Court hasdone exactly what this Court warned against inMescalaro and in so doing has again run afoul ofexisting Supreme Court case law.

The decision by the Montana Supreme Courtalso calls into question the authority of 18 U.S.C. §§1151 and 1165, which, respectively, defines Indiancountry and confers jurisdiction over hunting andfishing in Indian country to the tribe of that Indiancountry. Thus, the non-citable opinion of theMontana Supreme Court violates this Court’sprecedent, violates United States Code, and givescarte blanche jurisdiction to sentencing courts inMontana where once those courts were appropriatelycurtailed by statute. Thus, people in Montana couldbe subjected to unrestrained world-wide judicial fiatin a state where most people believe that hunting isa God given right.

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II. This Case Represents a RecurringQuestion of Exceptional ImportanceWarranting the Court’s ImmediateResolution.

With its decision, the Montana SupremeCourt has signaled that every sentencing court inthe state of Montana can assert jurisdiction into theNavajo Nation. Not including district courts, thereare over 150 courts handling these types ofmisdemeanors, many of which are courts of norecord. Therefore, without intervention by thisCourt, the prospect of Montana courts assertingjurisdiction into places is does not belong isstaggering. Reversing the Montana SupremeCourt’s decision would be consistent with thisCourt’s authority, United States Code, and otherrelevant authority including State v. Warner, 71N.M. 418, 379 P.2d 66, (1963), Quechan Tribe ofIndians y. Rowe, 350 F. Supp. 106, 110 (S.D. Cal.1972), U.S.v. Cleveland, 503 F.2d 1067 (9th Cir.1974), U.S. y. Grey£ox, 727 F.Supp. 727, (D.Or.1989), and Menominee Tribe o£ Indians y. U.S., 391U.S. 404, 411, 88 S. Ct. 1705, 1710, 20 L. Ed. 2d 697(1968).

The holdings in Mescalero, supra, andWarner, supra, are particularly instructive here.Mescalero involved the State of New Mexico, one ofthe states in which the Navajo Nation is located. InWarner, 71 N.M. at 421-22, 379 P.2d at 68-69, theNew Mexico Supreme Court held that New Mexico

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state courts do not have jurisdiction over criminaloffenses involving non-Indians and either Indians orIndian property. Consequently, and given that thewildlife within the boundaries of the Navajo Nationis the property of the Navajo Nation, Mescalero andWarner together demonstrate that a sentencingcourt in Montana has no authority at all to tell anon-member whether they can hunt in the NavajoNation or not. Montana’s assertion of judicialauthority into the Navajo Nation constitutes anillegal sentence and demonstrates an unbridledjudicial power-grab. It stands to reason that if astate court in which the Navajo Nation is locateddoes not have criminal jurisdiction over this type ofsituation, then there is no way a Montana court canissue a ruling preventing a Montanan from huntingin the Navajo Nation.

Likewise, in California, if an Indian tribe hasbeen given the right to control the licensing andregulation of hunting and trapping in its boundaries,where state law conflicts with Indian law the statelaw is unenforceable on Indian land. See Quecl~anTribe of Indians, 350 F. Supp. at 110.

Reversing the Montana Supreme Court’sdecision would also comport with Ninth Circuitdecisions regarding jurisdiction. In Cleveland,supra, the appellate court held that the state inwhich an Indian reservation is situated hasexclusive jurisdiction over crimes committed by non-Indians as against non-Indians on an Indianreservation. While Cleveland involved a felonious

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violent crime, it stands to reason - in distinguishingthe case sub judice case from Cleveland - thatbecause the alleged event involved a non-Indian inthe Navajo Nation and Indian property, only theNavajo Nation has jurisdiction over this matter.

In Oregon, the court determined that becausetribal court had authority to try a nonmemberIndian for violation of the tribal criminal huntinglaws, the federal court was without jurisdiction totry the nonmember for violating a federal statutethat prohibited entering onto Indian land forhunting purposes. Greyfox, supra.

Finally, according to 18 U.S.C. § 1162, atribe’s jurisdiction to regulate hunting, fishing, andtrapping preempts state law when such jurisdictionis properly conveyed by treaty. See, e.g., MenomineeTribe o£Indians, 391 U.S. at 411, 88 S. Ct. at 1710.

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CONCLUSION

For the foregoing reasons, Petitionerrespectfully requests that the Petition for Writ ofCertiorari be granted.

Respectfully Submitted,

Jason ArmstrongJennifer Wendt Bordy

Counsel of Record611 West Main StreetBozeman, Montana 59715(406) 587-2084(406) 922-2224 (fax)armstronglaw@mac.comAttorneys for Petitioner