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MIKE McGRATH

Montana Attorney General

SARAH A. BOND

Assistant Attorney General

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

COUNSEL FOR RESPONDENTS-DEFENDANTS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILEDAUG- 6 2007

CATHYk CATIT.RSON,CLERKU.S.COURTOFAPPEALS

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RANDY V. ROBERTS,

Plaintiff-Appellant

g.

JEFF HAGENER, Director, Montana

Department ofFish Wildlife, & Parks;

VICTOR WORKMAN, TIM

MULLIGAN, STEVE DOHERTY,

JOHN BRENDEN, and SHANE

COLTON, Commissioners, MontanaFish, Wildlife & Parks Commission;

MONTANA DEPARTMENT OF FISH

WILDLIFE & PARKS; MONTANA

FISH, WILDLIFE & PARKS

COMMISSION; BRIAN A.

SCHWEITZER, GOvernor, State of

Montana, and the STATE OF

MONTANA,

Respondents/Defendants.

Cause No. 07-35197

D.C. No. CV-05-153-BLG-RFC

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MIKE McGRATH

Montana Attorney General

SARAH A. BOND

Assistant Attorney General

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

COUNSEL FOR RESPONDENTS-DEFENDANTS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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RANDY V. ROBERTS,

Plaintiff-Appellant

V°

JEFF HAGENER, Director, Montana

Department ofFish Wildlife, & Parks; )

VICTOR WORKMAN, TIM )

MULLIGAN, STEVE DOHERTY, )

JOHN BRENDEN, and SHANE )

COLTON, Commissioners, Montana )

Fish, Wildlife & Parks Commission; )

MONTANA DEPARTMENT OF FISH )

WILDLIFE & PARKS; MONTANA )

FISH, WILDLIFE& PARKS )

COMMISSION; BRIAN A. )

SCHWEITZER, Governor, State of )

Montana, and the STATE OF )

MONTANA, )

)))

Respondents/Defendants.

Cause No. 07-35197

D.C. No. CV-05-153-BLG-RFC

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STATEMENT OF THE ISSUES

Appellee State of Montana would state the questions presented for review

as follows: Whether the District Court correctly held that: a) under binding

precedent of this Circuit, the rational basis test applies to Montana's

classification of persons as tribal members or nontribal members for purposes of

regulating big game hunting within the exterior boundaries of Montana's

federally recognized Indian Reservations, and b) Montana was entitled to

summary judgment below. The standard of review for the district court grant of

summary judgment is de novo. Buono v. Norton, 371 F.3d 543,545 (9th Cir.

2004).

STATEMENT OF THE CASE

Montana concurs generally with Roberts' statement of the case.

STATEMENT OF FACTS

Montana concurs generally with Robert's statement of the facts, with the

following exceptions and clarifications. First, Roberts has improperly alleged

new facts not presented to the District Court in his "statement with respect to

oral argument." (Pls.' Br. at 1.) Montana objects to these new allegations. He

claims now for the first time some connection between the recreational big game

hunting regulation in issue herein and his, "right to pursue his livelihood,"

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apparently now alleging this regulation concerns commercial big game hunting

and that his "livelihood" is somehow dependent on commercial big game

hunting within Montana's Indian Reservations. There is nothing in the record to

connect Robert's livelihood with this recreational big game hunting regulation.

The only allegations he made below relating to this regulation's impact on him

personally were that he is an avid hunter and that he would like to, and but for

the regulation would, hunt on his parents' property within the Crow Reservation.

(Appellants Br. at 4; ER 39, ¶ 23.) The notion that somehow Roberts'

livelihood is involved is not properly before the Court. The regulation in issue

does not govern commercial big game hunting, but rather only recreational big

game hunting. Cf. Mont. Admin. R. 24.171.101-2301 (regulations governing

commercial outfitting).

Second, Roberts alleges that the challenged regulation "permits members

of the Crow Indian Tribe to hunt big game on land located within the exterior

boundaries of the Crow Reservation..." (Appellants Br. at 9). Montana has

always asserted its regulation does not extend to members of the Crow Tribe for

activities within the Crow Reservation at all and the district court correctly held

the regulation does not indirectly regulate Crow members' hunting. (ER at 24.)

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Third, Montana has assumed for purposes of argument only, the truth of

all facts alleged about Roberts himself, i.e. that he is a non-member and wishes

to hunt within the Crow Reservation.

Fourth, while the challenged regulation has been reenacted annually, the

district court correctly found that same regulation or one substantially similar to

it, has been in effect for over 40 years. (ER 19; see State ex rel. Nepstad v.

Danielson, 149 Mont. 438, 427 P.2d 689 (1967) (applying 1967 regulation)). It

regulates big game hunting only for areas within Indian Reservations. The 2005

version stated in its entirety: "Unless otherwise provided between the State of

Montana and a Tribal Government big game hunting privileges on Indian

Reservations are limited to Tribal Members only. For questions contact the

Tribal Government Office." (ER at 51.) The current hunting season's

regulation can be viewed at: http://fwp.mt.gov/hunting/regulations.html at page

19 of 120.

And fifth, as noted above, Robert's ancestry is irrelevant to the

applicability of the regulation. The only relevant factor, other than whether any

cooperative agreement exists with the relevant tribe to govern big game hunting,

is whether Roberts is a member of the relevant tribe.

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STATEMENT REGARDING ORAL ARGUMENT

With respect to oral argument, Montana asserts that the sole issue raised

herein is governed by longstanding blackletter law and that oral argument would

not materially assist the Court in making its decision herein.

SUMMARY OF ARGUMENT

The district court correctly held that Montana was entitled to summary

judgment upholding the challenged regulation under the rational basis test,

because the classification of persons for activities occurring within Indian

reservations on the basis of tribal membership is a political classification based

on the federal fiduciary relationship with Indian Tribes. (ER 27.) Montana's

jurisdiction over tribal members hunting on tribal lands on reservations is

preempted under federal law. Montana, therefore, must classify individuals on

that basis to regulate other activities on reservations without violating federally

protected rights of tribal members. Here, the classification is based on tribal

membership and has a substantial nexus to the federally protected rights of tribal

members hunting within reservations. It has been upheld several times over the

forty years of its existence as a reasonable regulatory response to the mixed

jurisdictional and logistical difficulties of regulating big game hunting over vast

fi_rested and prairie areas where land ownership is not marked. Hunting in

Montana is a privilege, not a right, and Montana may regulate that activity so

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long as the regulation is rationally related to a legitimate state interest. The

district court correctly held that the challenged regulation is rationally related to

the legitimate enforcement of big game hunting within reservations, where

jurisdiction depends not only on land ownership patterns but also the tribal

affiliation of the hunter. The district court decision should be affirmed.

ARGUMENT

I. THE UNITED STATES HAS PLENARY AUTHORITY OVER

INDIAN MATTERS

The United States has plenary authority over relationships with Indian

Tribes, and has exercised that authority through treaty-making, U.S. Const.

art. II, § 2, United States v. Winans, 198 U.S. 371,384 (1905) (treaties between

a tribe and the United States are binding on states), as well as Congressional

power to legislate, United States v. Bruce, 394 F.3d 1215 (9th Cir. 2005)

(federal criminal statutes governing crimes in Indian Country), U.S.v. Peterson

and Hohmann, 121 F. Supp. 2d 1309, 1320 (D. Mont. 2000) (Congressional

abrogation of Blackfeet Treaty). Congressional authority derives from the so-

called "Indian Commerce Clause," providing that among the enumerated powers

of Congress is the power "[t]o regulate commerce.., with the Indian Tribes."

(U.S. Const. art. I, § 8, cl. 3.) Oneida County v. Oneida Indian Nation, 470 U.S.

226, 234 (1985). Because states retain their authority within reservations to the

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extent it is not preempted by federal law, see, e.g., Nevada v. Hicks, 533 U.S.

353 (2001) (federal law allowed state agents to enter reservation to investigate

case involving off-reservation offense by tribal member), regulatory jurisdiction

on Indian Reservations is a complex mix of state, federal and tribal authorities,

_, Montana v. United States, 450 U.S. 544, 564 (1981) (tribal regulation

of member fishing); Confederated Salish & Kootenai Tribes of Flathead Indian

Reservations v. Montana, 750 F. Supp. 446 (D. Mont. 1990) (state regulation of

hunting and fishing on reservation) (hereafter "CSKT"). For some areas there is

generally exclusive state jurisdiction, e.__., for non-Indian activities occurring on

fee lands and not involving a substantial federal or tribal interest, White

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144-45 (1980). For other fact

situations there is concurrent state and tribal jurisdiction, as in liquor transaction

regulation, see, Rice v. Rehner, 463 U.S. 713 (1983) and Fort Belknap Indian

Community v. Mazurek, 43 F.3d 428 (9th Cir. 1994). In other areas, Tribal

jurisdiction is exclusive, for example, in membership determinations or

domestic relations among tribal members, see generally, Santa Clara Pueblo v.

Martinez, 436 U.S. 49, 55-56 (1978); Fisher v. District Court, 424 U.S. 382,

387-389 (1976).

With respect to jurisdiction over big game hunting, federal law preempts

Montana's authority over tribal members on reservations to varying degrees on

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the federally recognized Indian reservations in Montana. Compare, CSKT,

750 F. Supp. at 450; (tribes have exclusive jurisdiction over fishing on south

half of Flathead Lake), with Montana v. US, 450 U.S. at 564 (1981) (state and

tribe share jurisdiction over Big Horn River). Roberts does not actually dispute

that Montana's authority is preempted to some degree, only the validity of

Montana's regulatory response to this preemption.

II. FEDERAL AND CONSEQUENT STATE CLASSIFICATIONS

BASED ON ENROLLMENT IN FEDERALLY RECOGNIZED

INDIAN TRIBES ARE NOT SUBJECT TO STRICT SCRUTINY.

A. Federal Classifications Based on Tribal Enrollment Status and

Related to Tribal Interests Are Political Classifications and

Subject Only to the Rational Basis Standard of Review.

In furtherance of its power, the United States has substantially regulated

Indian Tribes, through treaty making, statute, and regulation. Naturally, in

carrying out federal Indian policy, the United States, and of necessity the states,

have classified individuals based on their tribal membership status, and

sometimes on their status as "Indians." See, e.g., 25 U.S.C. § 1162. Roberts

incorrectly claims that the Montana classification in issue herein is based on

race, color, or national origin, is suspect, and is therefore presumed invalid

under the equal protection clause of the United States Constitution. (ER. at 20,

21; Appellants Br. at 13.)

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The first step in equal protection analysis is determining the appropriate

level of review.

Laws alleged to violate the constitutional guarantee of equal

protection are generally subject to one of three levels of"scrutiny"

by courts: strict scrutiny, intermediate scrutiny, or rational basis

review. Strict scrutiny is applied when the classification is made on

"suspect" grounds such as race, ancestry, alienage, or

categorizations impinging upon fundamental rights such as privacy,

marriage, voting, travel, and freedom of association. Laws are

subject to intermediate scrutiny when they discriminate based on

certain other suspect classifications, such as gender. When no

suspect class is involved and no fundamental right is burdened, we

apply a rational basis test to determine the legitimacy of theclassifications.

Kahawaiolaav. Norton, 386 F.3d 1271, 1277-78 (9th Cir. 2004), cert. denied,

545 U.S. 1114 (2005) (applying rational basis test to Indian classification)

(citations omitted).

The district court correct!y held that tribal classifications are not racial

classifications but political ones, and that they have long been upheld under the

rational basis test. (ER at 25-27.) In Morton v. Mancari, 417 U.S. 535 (1974),

the Court upheld against equal protection challenge employment preferences for

Indians working in Indian programs. The Court reasoned: "The preference is

not directed towards a "racial" group consisting of "Indians;" instead, it applies

only to members of "federally recognized" tribes .... In this sense, the

preference is political rather than racial in nature." 417 U.S. at 554. Such

classifications are not suspect but are within the scope of plenary federal

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authority over Indian tribes and upheld so long as they bear a substantial

relationship to uniquely Indian concerns. Williams v. Babbitt, 115 F.3d 657,

663 (9th Cir. 1997). Further, such federal classifications are binding on the

states through the Supremacy Clause. Washington v. Confederated Bands

Tribes of the Yakima Indian Nation, 439 U.S. 463,501 (1979); State v. Shook,

2002 MT 347, ¶ 14, 313 Mont. 347, 352, 67 P.3d 863,866.

B. Montana's Classification Is Limited to On-Reservation

Conduct_ and Is Therefore Exactly the Type of Classification

Expressly Singled Out as a Permissible Classification inWilliams v. Babbitt

State classifications based on tribal membership that arise from federal

law jurisdictional limitations are presumed valid and reviewed under the rational

basis standard. Confederated Bands & Tribes of the Yakima Indian Nation,

439 U.S. at 501. Roberts, ironically, cites Williams to support his argument.

But the classification in issue here is exactly the type of classification Williams

expressly singled out as "shielded" from equal protection strict scrutiny

challenge, because both are limited to conduct on or near Indian lands. The full

context of the Williams quote is:

we can discern Mancari's scope by looking to the cases it cited as

examples of permissible special treatment for Indians, see 417 U.S. at

555: Each case dealt with life in the immediate vicinity of Indian land.

E.g., Morton v. Ruiz, 415 U.S. 199... (1974) (providing welfare benefits

to Indians, but only those who live "on or near" reservations);

McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164,... (1973) (tax

exemption for income derived wholly from reservation sources); Simmons

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v. Eagle Seelatsee, 384 U.S. 209... (1966), affg 244 F. Supp. 808 (E.D.

Wash. 1965) (limiting the right to inherit reservation land only to

Indians); Williams v. Lee, 358 U.S. 217 (1959) (tribal courts and their

jurisdiction over reservation affairs).

While Mancari is not necessarily limited to statutes that give

special treatment to Indians on Indian land, we do read it as shielding only

those statutes that affect uniquely Indian interests.

115 F. 3d at 665 (emphasis added).

Roberts also attempts to derive some meaning from the fact that the

United States Supreme Court has not expressly addressed tribal classifications

since Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) asserting that

surely the high court would overrule Mancari if it had the chance today.

(Appellants Br. at 21) In the years since Adarand, the United States Supreme

Court has had numerous opportunities squarely to overrule Mancari, but it has

denied certiorari in every such case.

This Court has squarely rejected Roberts' Adarand argument:

[T]he weight of established law requires us to reject Means's

equal protection claim. Morton v. Mancari holds, (albeit in the

distinguishable context of Indian employment preferences by the

federal government) that federal statutory recognition of Indianstatus is "political rather than racial in nature." Means argues that

Mancari is undermined by Adarand Constructors, Inc. v. Pena, but

both the Supreme Court and our court have continued to rely onMancari, and we are bound to follow it under the doctrine of

Agostini v. Felton, [footnotes omitted].

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Means v. Navajo Nation, 432 F.3d 924, 932 (9th Cir. 2005). The Court has

applied Mancari's reasoning in other cases since Adarand was decided.

Kahawaiolaa, 386 F.3d at 1277-78; Artichoke Joe's Cal. Grand Casino v.

Norton, 353 F.3d 712, cert. denied, 543 U.S. 815 (2004). This Court must

follow both Mancari and its own circuit law unless they are squarely overruled.

Roberts' Adarand argument must therefore be rejected.

C. Because State Authori_ Over Tribal Members Hunting Within Their

Reservations is Preempted to Varying Degrees By Federal Law_ the

State Regulation Necessarily Classifies Individuals Based on Tribal

Membership.

1. State Big Game Hunting Regulation On Reservations Must

Classify Individuals Based on Tribal Membership to Avoid

Conflict With Preemptive Federal Law.

The hunting regulation in issue arises because the state's authority over

tribal members hunting on Indian lands within their own reservations is

preempted by the federal treaty making power. See United States v. Montana,

686 F.2d 766, 769 (9th Cir. 1982). Where the federal government has

preempted state jurisdiction subsequent state classifications passed in response

are presumed valid. Confederated Bands and Tribes of the Yakima Indian

Nation, 439 U.S. at 501.

In this Circuit, woe to the state which does not classify hunters based on

tribal membership status. In Shoshone-Bannock Tribes v. Idaho Fish and Game

Commission, 42 F.3d 1278 (9th Cir. 1994) the Court held the tribal rights so

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well established that a state wildlife official was not entitled to qualified

immunity for allegedly violating them by attempting to close a fishery to protect

a threatened salmon run despite the area being within the historic range of tribal

fisheries. The Court held:

The Tribes' right is and was clearly established. For more

than twenty years, the Fort Bridger Treaty has been interpreted to

reserve to the Tribes the right to fish on unoccupied lands of theUnited States. State v. Tinno, 94 Idaho 759,497 P.2d 1386, 1390

(Idaho 1972); United States v. Oregon, 913 F.2d 576, 586 (9th Cir.

1990) (Shoshone-Bannoc k treaty rights "have been recognized toinclude the right to fish"), cert. denied, 501 U.S. 1250 (1991). It is

equally well established that the states may not limit on

conservation grounds an Indian tribe's treaty right to fish except

where the limitation is necessary to the preservation of the fish.

Puyallup, 414 U.S. at 49; Antoine, 420 U.S. at 207. Anyreasonable Idaho Fish and Game official would have known of

these long established rights.

Id. at 1286.

There can be no question but that this state regulation arises from the

federal preemption of state authority over tribal members hunting within their

reservations. Montana v. United States, 686 F.2d at 769; Shook, 2002 MT 347,

¶ 14. "Indian 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 legislature []... [and are] superior to the reserved powers of the state,

including the police power." State v. McClure, 127 Mont. 534, 539-40,

268 P.2d 629, 631 (1954).

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To varying degrees, depending on the reservation, federal law preempts

state regulation of tribal members for on-reservation hunting activities. CSKT

750 F. Supp. at 448; United States v. Montana 686 F.2d at 769. The State may

regulate, however, on-reservation hunting activities of non-tribal members on

non-Indian lands. Montana v. United States, 450 U.S. 544 (1981) istate may

regulate non-Indian fisherman within state-owned waterways on Indian

reservation); United States v. Sanford, 547 F.2d 1085, 1089 (9th Cir. 1976)

(Montana may regulate hunting by non-members on the Crow reservation); State

of Montana ex rel. Nepstad v. Danielson, 149 Mont. 438,427 P.2d 689 (1967)

(same). Because state regulation of tribal members hunting within their

reservations is preempted to varying degrees, state regulation of the only

individuals the state has jurisdiction over, i.e., nontribal members, is appropriate.

It is rationally related to big game management and conservation. Shook,

2002 MT 347, ¶ 17. The State-wide closed season for non-members on

reservations in a legitimate means of coping with the enormous regulatory

complexity of reservation specific jurisdictional rules.

Given the plethora of tribal treaty rights, state regulations classifying

individuals for hunting and fishing regulation by tribal affiliation like the one in

issue are commonplace, and routinely upheld as valid under equal protection

challenge. See, e.g., Atwood v. Shanks, 91 Wash. App. 404, 958 P.2d 332

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(Wash. App. 1998) (different fishing gear regulations for non-lndians and treaty

Indians did not violate constitutional equal protection principles). Such

classifications are necessary for any state regulatory authority to be exercised

over activity conducted within the exterior boundaries of a reservation,

Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n.,

4.43 U.S. 658, 673 (1979).

The Court recently reaffirmed in Artichoke Joe's that such classifications

satisfy rational basis analysis:

Although discussions of Mancari arise primarily in thecontext of federal statutes relating to Indian tribes, in Washington

v. Confederated Bands & Tribes of Yakima Indian Nation,

439 U.S. 463, 58 L. Ed. 2d 740, 99 S. Ct. 740 (1979) ("Yakima

III"), the Supreme Court described the circumstances in which

rational-basis review applies to Indian-related state laws. "[W]hen

a state law applies in Indian country as a result of the state's

participation in a federal scheme that 'readjusts' jurisdiction over

Indians, that state law is reviewed as if it were federal law. If

rationally related to both Congress' trust obligations to the Indians

and legitimate state interests, the state law must be upheld.

Id. at 733.

As upheld by the district court below, the Montana Supreme Court in

Sh___oo____kkand Danielson, and the United States Supreme Court, Montana v. United

states, the State's regulation of non-Indians hunting on reservations is not a

violation of equal protection and dovetails properly with the federal

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government's regulation of hunting in Indian Country. Se_____e,18 U.S.C. § 1165

(creating federal criminal penalty for unlawful hunting on Indian lands).

o The Challenged Regulation Does Not Seek to Regulate Tribal

Members Hunting Big Game on Reservation

The district court correctly held that the Montana regulation does not

reach tribal members for on reservation activities, at all. (ER at 22.) Plaintiff

argues that Montana has jurisdiction over tribal members hunting on fee lands

on the reservation and that therefore its refusal to attempt to exercise that

authority is unlawful discrimination. Faced directly with that question on

remand from the Supreme Court's decision in Montana v. United States, the

Court clarified that neither the Supreme Court's decision nor its own resolution

of the case had decided that issue.

This enumeration [of decided questions] obviously does not

embrace the issue of whether, and if so, the extent to which, the

State of Montana can regulate the hunting and fishing by members

of the Crow Tribe on the Big Horn River and within the exterior

limits of the Crow Reservation, but outside 18 U.S.C. Section 1165

lands. As to that issue, we express no opinion other than to indicate

that our silence is not intended to express any opinion with respect

to the ultimate application of the doctrines of law of the case,

collateral estoppel, res judicata, or stare decisis when that issue is

squarely presented for resolution.

United States v. Montana, 656 F.2d at 769 (emphasis added). The State has

never interpreted its own regulation to address tribal member hunting at all.

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The Montana Supreme Court clarified the scope of the regulation in

Shook.

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

obligation by simply prohibiting hunting by non-tribal members on

reservations.

Shook, 2002MT 347 ¶ 17.

Thus, as adopted and implemented, the regulation classifies individuals

hunting on reservations into two classes based on federal law, tribal members

and nontribal members, and each member within those classes is treated

similarly. All non-members are prohibited from hunting big game absent a

governing agreement, and all tribal members are outside the regulation entirely.

As Roberts correctly noted in his brief, he and tribal members are treated

similarly for purposes of big game hunting regulation outside of the

reservations.

III. THE DISTRICT COURT CORRECTLY HELD THE STATE

CLASSIFICATION IS RATIONALLY RELATED TO

LEGITIMATE STATE PURPOSES AND ARISES FROM THE

FULFILLMENT OF UNIQUE FEDERAL OBLIGATIONS

TOWARD INDIANS.

Under the rational basis standard the statute is presumed valid, and the

plaintiff has a burden to show that there is no rational relationship between the

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classification and the legitimate governmental interests in hunting regulation and

wildlife protection.

Rational basis review, as we have oft-observed, is "highly

deferential." If the classification at issue does not involve

fundamental rights or suspect classes, it must be upheld "if there is

a rational relationship between the disparity of treatment and some

legitimate governmental purpose." In defending a statute on

rational-basis review, the government "has no obligation to produce

evidence to sustain the rationality of a statutory classification;"

rather, "the burden is on the one attacking the legislative

arrangement to negative every conceivable basis which might

support it."

Kahawaiolaa, 386 F.3d at 1278 (citations omitted). The district court properly

applied this standard. (ER at 27; 52-53.)

The district court gave Roberts ample opportunity to make the required

showing by converting Montana's motion to dismiss to one for summary

judgment, and allowing Roberts six additional months to submit a brief making

the proper showing. (ER at 22). Roberts failed to offer any credible reasons

why the regulation did not promote the conservation of wildlife within

reservations and serve the public interest in administering hunting regulation,

and the district court then properly granted the state summary judgment. (ER at

53.)

The district court correctly noted the regulation rationally serves the

legitimate state interests in regulating hunting on lands where the ownership

patterns are checkerboarded and not marked, the need to preserve reservation

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wildlife, and the need to avoid interference with tribal hunting rights. (ER at

53.) Montana has no obligation to bring forth other rational bases for the

regulation. Kahawaiolaa v. Norton, 386 F.3d 1271, 1280 (9th Cir. 2004), cert.

denied 545 U.S. 1114 (2005). It can clearly show ample rational bases. In

rejecting the same equal protection challenge brought here, the Montana

Supreme Court held:

[W]e need only address whether the state regulation.., is

rationally tied to the fulfillment of the unique obligation towardIndians. We hold that it is. There are seven Indian reservations in

Montana each established by treaty and agreements with the federal

government. The majority of the treaties establishing thereservations reserve some type of hunting or fishing rights to the

respective tribes. _, Treaty with the Flatheads, Etc. of

July 16, 1855, 12 Stat. 975 (commonly called the Hellgate Treaty).

At the same time, we have already held that the state can regulate

the hunting activities of non-tribal members on reservations unless

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

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

obligation by simply prohibiting hunting by non-tribal members on

reservations .... Therefore, the regulation is rationally related to

the federal, and consequent state, obligation to recognize tribal

hunting privileges.

Shook, 2002 MT 347, ¶¶ 16-17, _ Danielson and Montana v. United States.

State law is therefore in accord with the federal analytical test. As this

Court held in Kahawaiolaa:

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[U]nder rational basis review, the Equal Protection Clause is

satisfied so long as there is a plausible policy reason for the classification,

the legislative facts on which the classification is apparently based

rationally may have been considered to be true by the governmental

decisionmaker, and the relationship of the classification to its goal is not

so attenuated as to render the distinction arbitrary or irrational.

386 F.3d at 1280 (citation omitted).

Here, the State has chosen to respect the rights of the Crow Tribe to hunt

on Indian owned lands without state interference. Rather than face the very real

logistic difficulties of attempting to regulate hunting differently for tribal

members and non-members, and depending on land ownership patterns neither

discernable in the wild nor respected by migrating animals, it has simply closed

the big game season for non-members on the reservations pending adoption of

state tribal agreements to provide a uniform regulatory framework. This

approach is a rational response to the state's limited jurisdiction within the

reservations.

"When a law is assessed for a rational basis, exact precision or efficiency

is not necessary. 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. Baldwin v. Fish & Game Comm'n.,

436 U.S. 371,390 (1978). The regulation at issue here is rationally related to its

objective and is therefore constitutionally permissible.

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CONCLUSION

For the foregoing reasons the judgment should be affirmed.

Respectfully submitted this 31st day of July, 2007.

MIKE McGRATH

Montana Attorney General

Justice Building

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

SAI_,AH A. BOND

Assistant Attorney General

CERTIFICATE OF SERVICE

I hereby certify that I caused a true and accurate copy of the foregoing

Appellee's Brief to be mailed to:

Mr. Ronald E. Youde, Esq.

Mr. Steve W. Jennings, Esq.

Crowley, Haughey, Hanson, Toole & Dietrich PLLP

490 N. 31st Street, Suite 500

Billings, MT 59101-1288

Mr. Ronald W, Opsahl, Esq.

Mountain States Legal Foundation

2596 South Lewis Way

Lakewood, CO 80227

DATED: t\(_ ,'it

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