Hunting by race in Montana

William Perry Pendley
Posted: Aug 01, 2006 11:13 AM

Later this month, opening briefs will be filed with the U.S. Supreme Court in two landmark civil rights cases addressing race-based decision-making by public schools. The Court’s ruling may turn on its 1995 decision in Adarand Constructors, Inc. v. Peña, in which the Court repudiated its 15-year abandonment of the Constitution’s guarantee of equal protection. As the Court determines whether, in Justice Scalia’s words, “we stand by [our] insistence that ‘[r]acial classifications are suspect,’...and that [we will] ‘“smoke out” illegitimate uses of race’” when public schools assign students based on race, another lawsuit seeking to determine if the Court meant what it said in Adarand begins its long journey to the Court.

In 1995, Colorado Springs highway subcontractor Randy Pech, who, despite having submitted the lowest bids, had been denied contracts to install guardrails on federal highway projects, urged the Court to rule that the Constitution’s equal protection guarantee applies to the federal government. The United States argued, Congress is exempt from that provision. Justice O’Connor, writing for the Court, rejected the government view and ruled that the Fifth Amendment guarantee is “for persons, not groups,” and is a “personal right to equal protection of the laws [that may not be] infringed.”

In urging against and dissenting from the majority’s opinion, Justice Stevens noted that the Court’s Adarand ruling would imperil the Court’s 1974 ruling in

Morton v. Mancari, in which the Court upheld the constitutionality of an American Indian hiring preference utilized by the Bureau of Indian Affairs (BIA). Subsequently, legal scholars agreed with Justice Stevens; in fact, in 1997, the U.S. Court of Appeals for the Ninth Circuit concluded that, if Adarand controls, “Mancari’s days are numbered.”

If Mancari is doomed, Randy Roberts of Billings, Montana, is eager for its demise. That is the case because the State of Montana, and more specifically, its Department of Fish, Wildlife, and Parks, is using Mancari as its basis for barring owners of private property, like Roberts, from engaging in big game hunting on their own land if that land lies within the exterior boundaries of one of Montana’s seven Indian Reservations. In fact, for the last 35 years, Roberts has been barred from hunting on 1,500 acres of deeded land on which he would otherwise have the right to hunt if it did not lie within the Crow Indian Reservation; in Montana’s view, only American Indian tribal members may hunt there.

Roberts is not the first hunter to run afoul of Montana’s race-based, big game rules. Sandra Shook of Sanders County in northwestern Montana was charged with hunting illegally, even though she had a deer hunting license and tag and her neighbor’s permission to hunt on his land, because the land is within the Flathead Indian Reservation. The Montana Supreme Court rejected Ms. Shook’s constitutional claims and, relying on

Mancari, held that “laws that afford Indians special treatment are constitutional [if] [they] can be tied rationally to the fulfillment of the unique federal obligation toward Indians.” Therefore, held the court, because “federal Indian law regarding the rights of Indians is binding on the state,” Montana’s hunting rule “is rationally tied to the fulfillment of [Montana’s] unique obligation toward Indians.”

Apparently lost on the Montana Supreme Court was the following: first, Mancari related to the authority of Congress and, as a result of the delegation by Congress, the authority of the BIA vis-à-vis American Indians—no similar authority has been given to Montana; second, although Congress has a special relationship with American Indian tribes, Montana has no such relationship; and finally, given Adarand, Mancari is likely unconstitutional. Nonetheless, the U.S. Supreme Court declined to hear Shook’s appeal.

Randy Roberts is not waiting to be cited for hunting on privately owned land and a futile appeal to the Montana Supreme Court. Instead, he filed his lawsuit before the Montana federal district court. Today, his case is briefed and awaiting argument and a ruling.