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.