Opinion
83-07-33299; CA A35093 (Control), 83-07-33298; CA A35094, 83-07-33295; CA A35095
Argued and submitted May 19, 1986
Reversed October 8, 1986 Reconsideration denied November 21, 1986 Petition for review denied December 30, 1986 ( 302 Or. 461)
Appeal from Circuit Court, Multnomah County.
Robert W. Redding, Judge.
Lawrence Matasar, Portland, argued the cause for appellants. With him on the brief was Hoffman, Matasar Glaeser, Portland.
Linda DeVries Grimms, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Warden, Presiding Judge, and Van Hoomissen and Young, Judges.
PER CURIAM
Reversed.
Young, J., dissenting.
Defendants are Yakima Indians. They appeal from judgments convicting them of receiving, possessing and selling food fish out of season. ORS 509.011(2)(a); 506.991(3). They assign error to the trial court's denial of their motion for judgments of acquittal. We reverse.
Defendants' primary argument is that the state may not enforce its fishing laws against treaty Indians without alleging and proving a conservation necessity for doing so. We have recently held that the state may not convict a treaty Indian of taking fish out of season or of selling a game animal on ceded land without proving a conservation necessity for imposing the state's laws in an area which is subject to tribal control. It does not matter whether the Indians' actions were legal under tribal law; the treaty rights foreclosed the state from acting. State v. Jim (Bruce), 81 Or. App. 189, 725 P.2d 372 (1986); State v. Jim (Warner), 81 Or. App. 177, 725 P.2d 365 (1986). The state did not prove a conservation necessity in this case. The court should have granted the motions for acquittal.
Reversed.
I dissent, because I am generally in agreement with the concurrence of Rossman, J., in State v. Jim (Warner), 81 Or. App. 177, 725 P.2d 365 (1986).