Federal law provides certain protections for U.S.-held lands designated as either belonging to sovereign American Indian tribes or reserved for their use.
These lands, often preserved or undeveloped, hold significant cultural and historical value for the tribes. Respecting these lands and the rights of the tribes when considering activities such as hunting, fishing, or trapping is crucial.
However, under 18 U.S. Code 1165, doing so without authorization or permission is a federal offense that can result in incarceration for up to 90 days.
Indian country, as defined by 18 U.S.C. 1151, refers to all land within the boundaries of any Indian reservation under the jurisdiction of the United States Government, including rights-of-way running through the reservation.
It also includes all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory, and whether within or without the limits of a state, and all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
18 U.S. Code 1165 hunting, trapping, or fishing on Indian land says, "Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either is held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined under this title or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited."
What Does the Law Say?
18 U.S.C. 1165 explicitly prohibits any individual from engaging in hunting, trapping, or fishing on lands belonging to Indian tribes or individuals without "lawful authority or permission." This includes the following:
- Lands expressly belonging to Indian tribes, groups, or individuals
- Lands held in trust by the United States for Indian tribes (e.g., reservations)
- Lands subject to restrictions against alienation, meaning there are restrictions on the selling or transfer of the land because of Indian claims.
Simply put, unless you have lawful authority or permission from the tribe or group in question, engaging in these activities on Indian land is a federal crime.
To be clear, the law does not prohibit hunting, fishing, or trapping on these lands; it prohibits these activities without permission. Many tribes do issue permits for portions of their lands to be used. However, the act of hunting, fishing, or trapping without a permit or other authorization is subject to prosecution.
What Must Be Proven to Convict?
To convict you of this offense, prosecutors must establish the following key components of the crime beyond a reasonable doubt:
- Willful and Knowing Trespass: The individual must willfully and knowingly go onto Indian land without lawful authority or permission. This means that the person must have been aware that they were entering restricted land and did so intentionally.
- Purpose of Hunting, Trapping, or Fishing: The person must have entered the land with the specific intention of hunting, trapping, fishing, or removing game, peltries (animal skins), or fish. Merely trespassing without engaging in these activities may not constitute a violation under this statute.
- Lack of Lawful Authority or Permission: The absence of proper authorization or permission from the relevant Indian tribe or authority is a critical element of the crime. Even if the person had no intention of causing harm, the lack of permission makes the act unlawful.
What are Some Examples?
EXAMPLE 1: John, an avid hunter, decides to explore new hunting grounds and ventures onto a nearby Indian reservation without seeking permission. Despite clear signage indicating the land was restricted and reserved for the local Indian tribe, John proceeds to set up traps and hunt for deer. John can be prosecuted for violating 18 U.S.C. 1165.
EXAMPLE 2: David is hunting on tribal land during deer season. Tribal law enforcement sees him and approaches him. David shows them a permit issued by the governing tribe authorizing him to hunt on the land. David is not guilty under 18 U.S.C. 1165 because he has lawful authority to hunt on the land.
What Are Related Federal Laws?
18 U.S. Code Chapter 53 Indians has several related federal statutes, such as the following:
- 18 U.S.C. 1151 - Indian country defined.
- 18 U.S.C. 1152 - Laws governing.
- 18 U.S.C. 1153 - Offenses committed within Indian country.
- 18 U.S.C. 1154 - Intoxicants dispensed in Indian country.
- 18 U.S.C. 1155 - Intoxicants dispensed on a school site.
- 18 U.S.C. 1156 - Intoxicants possessed unlawfully.
- 18 U.S.C. 1158- Counterfeiting Indian Arts and Crafts Board trademark.
- 18 U.S.C. 1159 - Misrepresentation of Indian-produced goods and products.
- 18 U.S.C. 1160 - Property damaged in committing an offense.
- 18 U.S.C. 1161 - Application of Indian liquor laws.
- 18 U.S.C. 1162 - State jurisdiction over offenses committed by or against Indians in the Indian country.
- 18 U.S.C. 1163 - Embezzlement and theft from Indian tribal organizations.
- 18 U.S.C. 1164 - Destroying boundaries and warning signs.
- 18 U.S.C. 1165 - Hunting, trapping, or fishing on Indian land.
- 18 U.S.C. 1166 - Gambling in Indian country.
- 18 U.S.C. 1167 - Theft from gaming establishments on Indian lands.
- 18 U.S.C. 1168 - Theft by officers or employees of gaming establishments on Indian lands.
- 18 U.S.C. 1169 - Reporting of child abuse.
- 18 U.S.C. 1170 - Illegal trafficking in Native American human remains and cultural items.
What are the Penalties?
Violating 18 U.S.C. 1165 is a misdemeanor violation. If you are convicted of hunting, trapping, or fishing unlawfully on Indian lands, you could face the following:
- Fines of up to $5000 and
- Up to 90 days in prison.
In addition, any game, fish, and peltries in your possession at the time of the offense will be forfeited. This provision aims to ensure that violators do not benefit from their unlawful activities.
What are the Common Defenses?
If you are accused of violating 18 U.S.C. 1165, a federal criminal defense attorney can employ several defense strategies to counter the charges. Common defenses include:
- Lack of Intent: If you can prove that you were unaware of your location and did not intentionally hunt, trap, or fish on Indian land, this may negate the willfulness element of the offense.
- Permission Granted: If you can prove that you had lawful authority or permission to be on the land, this can serve as a valid defense. Documentation or testimony from the relevant Indian tribe or authority can be critical in establishing this defense.
- Mistake of Fact: If you believed, in good faith, that you were complying with all necessary regulations or that you were on public or private land where hunting, trapping, or fishing was permitted, this could be a viable defense.
For additional information, contact Eisner Gorin LLP, a federal criminal defense law firm based in Los Angeles, California.
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