## Facts

- Lasso Stasso, an enrolled member of the Confederated Salish and Kootenai Tribes, killed a deer on August 24, 1972, near White Pine Creek in Sanders County, Montana.
- The deer was killed outside the current boundaries of the Flathead Reservation but within National Forest lands and within the tribes’ aboriginal hunting territory.
- Montana charged Stasso in justice court with violating state game laws by killing a deer out of season.
- Stasso asserted a treaty-reserved right to hunt on “open and unclaimed lands” under the 1855 Treaty of Hell Gate, arguing Montana’s season restrictions could not be applied to him on those lands.

## Issues

1. Whether National Forest lands outside the reservation but within the tribes’ aboriginal territory qualify as “open and unclaimed lands” under the Treaty of Hell Gate.
2. Whether the Treaty of Hell Gate preserves a continuing tribal right to hunt on such lands free from Montana game law regulation absent clear congressional abrogation.

## Decision

- The Montana Supreme Court affirmed the district court’s order setting aside the conviction and dismissing the charge.
- The court held the National Forest lands at issue were “open and unclaimed lands” within the treaty’s meaning.
- The court held the treaty hunting right had not been extinguished and therefore preempted application of Montana’s out-of-season game law to Stasso’s hunting on those lands.
- The court rejected the State’s arguments that later governmental acts or state wildlife authority implicitly curtailed the treaty right.

## Legal Principles

- Indian treaty rights are federal law and prevail over conflicting state regulation unless Congress clearly expresses an intent to abrogate those rights.
- Treaty provisions reserving off-reservation hunting on “open and unclaimed lands” can apply to federally owned public lands, including National Forest lands, when they are not privately owned or occupied.
- Statehood, territorial enactments, and general federal land management measures do not impliedly extinguish treaty-reserved hunting rights without clear congressional authorization.
- When a treaty right applies, a state may not enforce general game-season restrictions against a tribal member exercising that right on qualifying lands.

## Conclusion

The court held that a tribal member’s Treaty of Hell Gate right to hunt on “open and unclaimed lands” extended to the National Forest lands where the deer was taken, and because Congress had not clearly abrogated that treaty right, Montana could not prosecute the out-of-season hunting offense.


State v. Stasso, 563 P.2d 562 (Mont. 1977)