State v. Begay

                                     647

Argued and submitted October 27, 2020, reversed and remanded June 30, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                         WILSON BEGAY,
                       Defendant-Appellant.
                     Wasco County Circuit Court
                       17CR38009; A169668
                                 

     Defendant—who is a member of the Confederated Tribes and Bands of the
Yakama Nation—appeals a judgment of conviction for unlawfully taking a deer,
ORS 498.002, on a parcel of privately owned land. On appeal, he challenges the
trial court’s pretrial ruling prohibiting him from raising and putting on evidence regarding his right to hunt on “open and unclaimed land” as provided in
Article III of the Yakama Treaty of 1855. The state contends that defendant’s
defense is unavailable, because the parcel on which defendant took the deer was
not “open and unclaimed” within the meaning of the Treaty. Held: The Court of
Appeals construed the meaning of “open and unclaimed” as that phrase is used in
the 1855 Yakama Treaty and concluded that there was sufficient evidence in the
record to support defendant’s treaty defense that the parcel where he killed the
deer would have been considered “open and unclaimed land” within the meaning
of the Treaty.
   Reversed and remanded.



   Janet L. Stauffer, Judge.
   John Evans, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Carson L. Whitehead, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   TOOKEY, J.
   Reversed and remanded.
648                                            State v. Begay

        TOOKEY, J.
         Defendant—who is a member of the Confederated
Tribes and Bands of the Yakama Nation—killed a deer on a
parcel of privately owned property, was convicted of unlawfully taking a game animal, ORS 498.002, and now appeals
that judgment. His appeal requires us to consider the provisions of the Yakama Treaty of 1855 (the Treaty).
        Before trial, defendant gave notice that he would
assert as a defense his right to hunt on “open and unclaimed
land” as provided in Article III of the Treaty. The state
then moved in limine for an order prohibiting defendant
from offering at trial any evidence, arguments, or jury
instructions regarding his treaty defense. The trial court
granted the state’s motion, determining that the provisions
of the Treaty—i.e., defendant’s right to hunt on “open and
unclaimed land”—did not apply to the particular parcel
where defendant killed the deer (the parcel).
         On appeal, in his first and second assignments of
errors, defendant challenges the trial court’s pretrial ruling that prohibited him from raising his treaty defense and
putting on evidence regarding that defense. In his third
and fourth assignments of error, defendant challenges the
trial court’s refusal to give two jury instructions regarding
the treaty defense. In his fifth assignment of error, defendant contends that the trial court erred in not granting his
motion for judgment of acquittal. In his sixth and seventh
assignments of error, defendant asserts that the trial court
plainly erred in failing to sua sponte strike vouching testimony by a witness.
         As explained below, we conclude that the trial court
erred when it prohibited defendant from raising his treaty
defense and from presenting evidence on that defense.
Defendant should have been allowed to present his treaty
defense at trial and to offer evidence of it. On that basis, we
reverse and remand for a new trial. As to defendant’s other
assignments of error, the trial court did not err in refusing
to give the requested jury instructions, insofar as they pertained to a defense that had not been tried (as a result of
the court’s pretrial ruling), and we decline to opine on the
specific wording of the instructions that were offered under
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present circumstances. Similarly, as to the motion for judgment of acquittal, the trial court did not err in denying the
motion, which was premised on the excluded treaty defense,
and we express no opinion as to the merits of such a motion
on a different record. Finally, we need not address the sixth
and seventh assignments of error, as neither claim of error
was preserved, making it likely that a different record may
develop if the case is retried.
         “We review the record to determine whether defendant presented any evidence to support the defenses he
sought to assert and evaluate that evidence in the light most
favorable to defendant.” State v. Shields, 

, 46,

, rev den, 

 (2018) (citation and internal quotation marks omitted). “The trial court may withhold an affirmative defense to a criminal charge from the
jury only if there is no evidence in the record to support one
or more elements of the defense.” Id. at 47. Because defendant’s assignments pertain to a pretrial ruling on the state’s
motion in limine, “we recount the pertinent evidence in the
record as of the time that the court made those rulings.”
State v. Dart, 

, 

 (2021).
         In accordance with that standard, we begin by
recounting the relevant facts in the record. After that, we
briefly explain the applicable canons of Indian treaty interpretation, after which we examine the Treaty’s text and context, the circumstances of its negotiation, and the Yakamas’
cultural understanding of property occupancy in order to
interpret the meaning of “open and unclaimed land” as used
in the Treaty. Finally, with that interpretation in mind,
we turn to examining whether the evidence in the record
supports defendant’s contention that the parcel was “open
and unclaimed land,” and thus, that he should have been
allowed to raise his treaty defense at trial.
              I. FACTUAL BACKGROUND
        Defendant is an enrolled member of the Yakama
Nation and has been a lifelong resident of Celilo Village,
an unincorporated Native American community on the
Columbia River in northeastern Wasco County. Defendant
has been a fisherman and a hunter since he was eight or
nine years old. In April 2017, defendant was tasked with
650                                                           State v. Begay

gathering salmon and deer for the Yakamas’ seasonal First
Foods Feast. Pursuant to that task, defendant killed and
took a deer on a parcel of land located in Wasco County,
southeast of the Dalles—an area in which the Yakama had
traditionally hunted.
         Shortly thereafter, Sergeant Vanderwerf, a supervisor for the Oregon State Police Fish and Wildlife division,
began investigating defendant’s taking of the deer, and
he determined that the parcel was privately owned land.
The landowner showed Vanderwerf the specific “kill site”
within the parcel where defendant killed the deer. There,
Vanderwerf found “evidence of the [deer’s] blood and stuff.”
         As a result of Vanderwerf’s investigation, defendant was charged with unlawfully taking a game animal,
a violation of ORS 498.002.1 Before trial, defendant filed a
notice of his intent to rely on a defense that, as a member
of the Yakama Nation, he had a right to hunt on “open and
unclaimed land,” as provided in Article III of the Yakama
Treaty of 1855. In response, the state filed a motion in
limine, asking the trial court “to prohibit defendant from
offering evidence, arguments, and jury instructions at trial”
relating to “the Treaty,” “any rights under that Treaty,” and
“defendant’s status as an enrolled member of the Yakama
Tribe.”
         At a hearing on the state’s motion, defendant testified that he “didn’t open any fences or cross a fence” while
hunting; that “There were no signs where I was hunting”;
and that “If I see a sign that says no trespassing, then I
don’t go there.” Defendant also testified that where he sees
“signs of ownership,” he will “find the owner and ask” before
he hunts that area, explaining that “That’s how … we’ve
always done things, work with people, talk with people.”

   1
     ORS 498.002 provides:
       “(1) Wildlife is the property of the state. No person shall angle for, take,
   hunt, trap or possess, or assist another in angling for, taking, hunting, trapping or possessing any wildlife in violation of the wildlife laws or of any rule
   promulgated pursuant thereto.
       “(2) No person shall angle for, take, hunt or trap, or assist another in
   angling for, taking, hunting or trapping any wildlife while intentionally violating ORS 164.245 to 164.270 or 498.120.”
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         Johnson Jay Meninick, the Cultural Resource
Program Manager for the Yakama Nation, provided additional testimony regarding the Yakamas’ historical hunting grounds: “[O]ur tracks go clear into Burns, Oregon, into
Canada, British Columbia. And we traveled all over, and we
hunted buffalo up into Montana and Wyoming, the Teton
Mountains. So our hunting area is broad.” Meninick specified that the Yakama had “roamed the country [in] all different areas, both sides of the Columbia River, up in the high
country, low country,” including “the upland area of Wasco
County and … in the fields out in that region.”
         Also at that hearing, Vanderwerf testified about the
parcel’s location and physical characteristics: The privately
owned parcel was located beside a county road in “a desolate
farming area” of Wasco County. From “a topography standpoint,” the parcel was “a downhill slope” with a “[f]airly
decent grade.” Vanderwerf testified that the specific “kill
site” was located within the parcel, “in the neighborhood
of 30 yards” downslope from the county road. Vanderwerf
noted that “[t]here are no fences” on or surrounding the parcel, though there are “fences relatively nearby”—one “across
the road from the [kill site],” and another “several hundred
feet” further downslope from the kill site. Vanderwerf further testified that “[t]here were no signs” near the parcel
indicating it was private property; “there were no buildings”
on the parcel, though he saw “a silo or something” in “the far,
far distance”; “there were no vehicles” parked in the parcel;
and the parcel “wasn’t planted,” and it was “not cultivated.”
According to Vanderwerf’s testimony, the parcel had a grass
“stubble” and sagebrush on it, and it was “just an open field.”
        After the hearing, the trial court granted the state’s
motion in limine, and its order explained, in its entirety, that
   “Defendant’s proposed special jury instructions will not
   be submitted to the jury. The provision of the 1855 Treaty
   does not apply to this privately owned land, and the proposed instructions are not accurate statements of the law.”
Consequently, defendant’s case was presented to a jury without any evidence, arguments, or jury instructions regarding
his treaty defense, and defendant was ultimately convicted
for one count of unlawfully taking wildlife, ORS 498.002.
652                                                             State v. Begay

        On appeal, defendant challenges his conviction, contending that “the trial court erred when it prohibited him
from asserting a treaty defense,” that “The Yakama Treaty
safeguards the right of the Yakama Nation to hunt on ‘open
and unclaimed land,’ ” and that “the Yakama Nation would
have understood ‘open and unclaimed land’ to refer to land
that bore no visible indicia of ownership—that is, land that
had no fences, cultivated fields, buildings, signs, or other
such landmarks.” In response, the state contends that “the
parties to the 1855 treaty would not have considered the
parcel to [be] ‘open and unclaimed land,’ when the parcel
had indications of private ownership”—namely,
    (1) “The [parcel] had been in private ownership by [the landowner’s] family since the 1880s”; (2) “The land immediately
    surrounding the parcel was cultivated”; (3) “A county road
    ran through the property”; (4) “The land across the road
    from the parcel was fenced, as was land on the downhill
    side of [the] parcel”; and (5) “There was a farm structure
    within view of the parcel.”2
         As the parties’ briefing makes clear, the dispute
in this case centers on whether the parcel where defendant
killed the deer would be considered “open and unclaimed
land” within the meaning of that phrase in Article III of the
Treaty such that defendant may assert his treaty rights as
a defense.
      II. INTERPRETATION OF INDIAN TREATIES3
         Before we turn to the text of the Treaty at issue
in this case, we explain how we are to interpret its text,
bearing in mind that interpretation of Indian treaties is a
matter of federal law, not state law. See Felix Cohen, Cohen’s
Handbook of Federal Indian Law § 2.01(1), 109 (Nell Jessup
Newton ed 2012) (explaining that federal law governs United
States’ recognition of tribal status and rights).

     2
       The state, in its briefing, raised several additional facts that were elicited
during trial. Because those additional facts were elicited during trial—that is,
after the trial court ruled on the state’s motion in limine—we do not address those
facts here.
     3
       Throughout this opinion, we use the term “Indian,” rather than some alternative term, because that is the term used in the relevant case law, federal legislation, and scholarly literature.
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         Treaty interpretation “is a form of contract interpretation.” State v. Watters, 

, 

, rev den, 

 (2007). To interpret a contract,
“we first examine the text and context,” followed next by
“extrinsic evidence of the circumstances underlying [its] formation” to “determine if the contract provision is ambiguous.” Id. (citation and internal quotation marks omitted). “If
the provision remains ambiguous after the first two steps
have been followed, the court relies on appropriate maxims
of construction to determine the provision’s meaning.” Id.
(citation and internal quotation marks omitted).
         Although interpreting an Indian treaty is similar
to interpreting a private contract, there are several important differences: “[T]reaties are construed more liberally
than private agreements,” and “to ascertain their meaning we may look beyond the written words to the history
of the treaty, the negotiations, and the practical construction adopted by the parties.” Choctaw Nation of Indians v.
U.S., 

, 

, 

 (1943).
Additionally, “the standard principles of statutory construction do not have their usual force in cases involving Indian
law”; instead, the United States Supreme Court has developed specific “canons of construction applicable in Indian
law.” Montana v. Blackfeet Tribe of Indians, 

,

, 

 (1985). First, “[i]t is well
established that, in construing a treaty between the United
States and Indians, the courts will construe it liberally in
favor of the Indians.” Seufert Bros. v. Hoptowit et al., 

, 

, cert den, 

 (1952) (collecting
cases). Second, an Indian treaty is construed “in the sense
in which its provisions would naturally be understood by the
Indians.” Id. And third, “ambiguities should be construed
in favor of the Native Americans.” Watters, 

.4
        The United States Supreme Court has explained the
reasons for adhering to those special canons of construction:
     4
       See also Cohen, Cohen’s Handbook of Federal Indian Law § 2.02(1) at 113-14
(noting that the “basic Indian law canons of construction require that treaties
… be [1] liberally construed in favor of the Indians”; that “[2] all ambiguities
are to be resolved in their favor”; and that “[3] treaties and agreements are to be
construed as the Indians would have understood them”).
654                                                           State v. Begay

    “In construing any treaty between the United States and
    an Indian tribe, it must always … be borne in mind that
    the negotiations for the treaty are conducted, on the part
    of the United States, an enlightened and powerful nation,
    by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and
    assisted by an interpreter employed by themselves; that
    the treaty is drawn up by them and in their own language;
    that the Indians, on the other hand … ha[d] no written
    language and [we]re wholly unfamiliar with all the forms
    of legal expression, and whose only knowledge of the terms
    in which the treaty is framed is that imparted to them by
    the interpreter employed by the United States[.]”
Jones v. Meehan, 

, 

, 

(1899).
         The Court’s interpretive rules not only reflect a perceived inequality in bargaining power and the likelihood
of miscommunication between the Indians and the representatives of the United States who negotiated the Indian
treaties, but those rules also reflect the Court’s understanding that a “treaty was not a grant of rights to the Indians,
but a grant of right from them—a reservation of those not
granted.” United States v. Winans, 

, 

, 

 (1905) (emphases added). In other words,
“all powers of tribes, as sovereign nations, were retained
unless granted by the tribe pursuant to treaty.” Charles F.
Wilkinson & John M. Volkman, Judicial Review of Indian
Treaty Abrogation: “As Long as Water Flows, or Grass Grows
Upon the Earth”—How Long a Time Is That?, 63 Cal L Rev
601, 619 (1975) (noting that “This reserved rights doctrine
has been described as perhaps the most basic principle of all
Indian law”).5
    5
      The Indians’ reserved rights to fish, hunt, and use open and unclaimed
land operate as a sort of servitude or profit upon that land. See Winans, 

 (“[T]he treaty … imposed a servitude upon every piece of land as though
described therein.”); see also Cohen, Cohen’s Handbook of Federal Indian Law
§ 18.04(2)(f) at 1174 (“Off-reservation hunting, fishing, and gathering rights are
servitudes over the burdened lands. Neither states nor private property owners
may bar tribal access to areas subject to treaty hunting, fishing, and gathering
rights.”); Whitney Angell Leonard, Habitat and Harvest: The Modern Scope of
Tribal Treaty Rights to Hunt and Fish, 3 Am Indian LJ 285, 294 (2014) (“[T]reaty
provisions guaranteeing tribes the right to hunt, fish, and gather off-reservation
in perpetuity reserved to those tribes a property interest in their continued right
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         With that interpretive framework in mind, we turn
to the treaty provision at the center of the parties’ dispute in
this case.
  III.    INTERPRETATION OF THE YAKAMA TREATY
         To interpret the Treaty, we begin by examining
its text and context, followed by the circumstances of the
Treaty’s negotiation, information regarding the Yakamas’
cultural understanding of land occupancy, and lastly, application of the appropriate maxim of construction—i.e., that
ambiguities should be construed in favor of members of the
Yakama Nation.
A.    The Text and Context of the Treaty
        Defendant in this case contends that he took the
deer under the hunting rights reserved in Article III of the
Treaty, which provides, in relevant part:
     “The exclusive right of taking fish in all the streams, where
     running through or bordering said reservation, is further
     secured to said confederated tribes and bands of Indians,
     as also the right of taking fish at all usual and accustomed
     places, in common with the citizens of the Territory, and of
     erecting temporary buildings for curing them; together with
     the privilege of hunting, gathering roots and berries, and
     pasturing their horses and cattle upon open and unclaimed
     land.”

1855 Treaty with the Yakama, Art III, 12 Stat 951 (emphases added). As evidenced, that provision reserves the right
of the Yakama people to hunt on “open and unclaimed land.”
The Treaty does not, however, define the terms “open” and
“unclaimed.”
        This court previously interpreted the phrase
“open and unclaimed land” in Watters. 

-
47. In Watters, the defendants killed an elk on privately
owned timber land and argued that the land was “open
and unclaimed” within the meaning of the 1855 Nez Perce

to carry out these activities. This right has been most aptly described as a profit
à prendre, the property law right to enter another person or entity’s property and
remove or extract a resource.”).
656                                                           State v. Begay

Treaty. 

.6 We noted that the land in question “was
gated, included cabins, was posted with signs at major
points of entrance, had cattle guards, had roads, and had
drift fences.” 

. We ultimately held that “privately
owned land that shows signs of habitation (such as cabins),
that includes signs announcing its ownership, and that has
other indicia of ownership (such as cattle guards and gated
roads) is not open and unclaimed.” 

.
        We did not, however, address whether privately
owned land that lacks such indicia of ownership is considered “open and unclaimed.” See 

.
           In resolving the issue in Watters, we explained that
    “At the time of the 1855 treaty, the word ‘open,’ as relevant here, meant, ‘Not fenced or obstructed; as an open
    road. … Admitting all persons without restraint; free to
    all comers.’ II Noah Webster, An American Dictionary of
    the English Language (1828) (italics in original). To ‘claim’
    meant, ‘To have a right or title to; as, the heir claims the
    estate by descent; he claims a promise.’ I Noah Webster, An
    American Dictionary of the English Language (1828) (italics
    in original); see also I John Bouvier, Law Dictionary 278
    (1874) (A ‘claim’ is the ‘possession of a settler upon the wild
    lands of the government of the United States ….’).”

. Based on those dictionary definitions, we said
that “Those definitions suggest that, to those involved in
negotiating and signing the 1855 treaty, open and unclaimed
lands were those that were not fenced or obstructed (open)
and to which no settler had title or possession (unclaimed).”

         Those dictionary definitions—although suggestive
of the meaning of “open and unclaimed” as used in the
Treaty—are not conclusive of that meaning: “Dictionaries,
after all, do not tell us what words mean, only what words

     6
       In 1854 and 1855, Washington Territorial Governor Isaac Stevens executed
nine treaties with 23 tribes and bands of the Pacific Northwest. Those treaties
are collectively referred to as the “Stevens Treaties,” and the text of those treaties is “identical in all essential elements.” Vincent Mulier, Recognizing the Full
Scope of the Right to Take Fish under the Stevens Treaties: The History of Fishing
Rights Litigation in the Pacific Northwest, 31 Am Indian L Rev 41, 41 & n 1 (2006).
Both the Treaty at issue in this case and the Nez Perce treaty at issue in Watters
were “Stevens Treaties.”
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can mean[.]” State v. Cloutier, 

, 

(2011) (emphasis in original). And, perhaps more importantly, the words used in a treaty with the Indians must
“be construed, not according to the technical meaning of
its words to learned lawyers, but in the sense in which they
would naturally be understood by the Indians.’ ” Jones, 

 (emphasis added).
        In discerning how the Yakama negotiators would
have understood the treaty words used to express their
reserved hunting rights, it is essential to note that they
faced a significant linguistic disadvantage throughout the
treaty negotiations. As the United States Supreme Court
recently acknowledged with regard to the Treaty,
   “The parties negotiated the treaty in Chinook jargon, a
   trading language of about 300 words that no Tribe used as
   a primary language. The parties memorialized the treaty
   in English, a language that the Yakamas could neither read
   nor write. And many of the representations that the United
   States made about the treaty had no adequate translation
   in the Yakamas’ own language.”
Wash. State Dept. of Licensing v. Cougar Den, Inc., 

, ___, 

, 

 (2019); see
also United States v. Washington, 

, 330, aff’d,
520 F2d 676 (1975) (“Having only about three hundred words
in its vocabulary, the [Chinook] Jargon was capable of conveying only rudimentary concepts, but not the sophisticated
or implied meaning of treaty provisions about which highly
learned jurists and scholars differ.”); Charles F. Wilkinson,
Messages from Frank’s Landing: A Story of Salmon, Treaties,
and the Indian Way 11 (2006) (“Like pidgin English, the
Chinook jargon was a rudimentary device for trade, a patchwork of English, French, and various tribal languages. How
could it possibly speak to sovereignty, land ownership, fishing rights, assimilation, freedom, or the futures of societies?”). Thus, the negotiations took place in a language not
well-suited to precisely communicating the legal effect of
the Treaty’s provisions regarding reserved hunting rights.
         The limitations of Chinook jargon as a negotiating
language are evident in this case. In Chinook jargon, the word
“open” is translated as “háhlakl,” meaning “[w]ide; open,” as
658                                             State v. Begay

in “open the door” or a place where the woods “become less
dense.” George Gibbs, Dictionary of the Chinook Jargon, or,
Trade Language of Oregon 4, 39 (1863). Meanwhile, there is
no word in Chinook jargon corresponding to “unclaimed,”
or “claim,” or any other variation thereof. See id. at 34-35.
As defendant notes, perhaps the closest analog for describing “claimed” land would have been to describe land that
is fenced, because Chinook jargon includes a word describing a “fence” or “corral” (i.e., “kul-lagh”). See id. at 11, 35.
Additionally, Chinook jargon lacks any words equivalent to
“own,” “owned,” “title,” “property,” “possess,” or “settlement.”
See id. at 38-41.
         Given the words used in the Treaty to describe the
Indians’ reserved hunting rights, we maintain—consistent
with what we said in Watters—that the Indian negotiators
would have understood that their reserved hunting rights
extended to lands that are not fenced and not claimed by
settlers. However, given the significant language barriers
facing the Yakama negotiators and the lack of any adequate
translation for the English words “open” and “unclaimed,”
we think it highly doubtful that the Yakama would have
understood that their reserved hunting rights did not
extend to unfenced lands that bore no outward indication
of occupation but were nevertheless “claimed” in the purely
legal sense familiar to the United States negotiators who
drafted the Treaty. Instead, the minutes of the treaty negotiations—to which we turn next—show that the United
States negotiators repeatedly explained to the Yakama that
their reserved hunting rights would extend to lands not
“occupied” by settlers.
B.    1855 Yakama Treaty Negotiations
         The negotiations leading up to the Treaty “took place
over two weeks and are memorialized in minutes.” Watters,

. Those minutes reveal that “Indian
leaders negotiated carefully about their rights to hunt, fish,
and gather on and off the newly designed reservations.”
Clifford E. Trafzer, The Legacy of the Walla Walla Council,
1855, 106 Or Hist Q, no 3, at 398, 403-04 (2005). The negotiators for the United States—Governor Isaac Stevens and
General Joel Palmer—repeatedly explained that under the
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Treaty provisions, the Indians would retain the right to use
off-reservation lands not “occupied” by white settlers:
  “You will be allowed to go to the usual fishing places and
  fish in common with the whites, and to get roots and berries and to kill game on land not occupied by the whites; all
  this outside the Reservation.
  “…
  “[You] shall have the same liberties outside the Reservation
  … on land not occupied by whites, to kill game, to get berries and to go on the roads to market.
  “…
  “We have told these people and it is so said in the paper
  that their horses and cattle would be allowed to graze outside of the reservation the same as our people when it was
  not occupied by whites.
  “…
  “I will ask of Looking Glass whether he has been told …
  that he can catch fish at any of the fishing stations, that he
  can kill game and can go to Buffalo when he pleases, that
  he can get roots and berries on any of the lands not occupied by settlers.”
Oregon Bureau of Indian Affairs, Certified Copy of the
Original Minutes of the Official Proceedings at the Council
in Walla Walla Valley, Which Culminated in the Stevens
Treaty of 1855 (unpaginated) (1953) (emphases added), available at https://www.lib.uidaho.edu/mcbeth/governmentdoc/
1855council.htm (last accessed June 22, 2021).
         In light of those statements by Stevens and Palmer
during negotiations, we think the Yakama would have
understood that their reserved hunting rights extended to
unfenced lands that were not occupied by settlers. Moreover,
because we must interpret the Treaty’s provisions in “the
sense in which they would naturally be understood by the
Indians,” Jones, 

, we think the Yakama negotiators would have understood “occupied” to mean actual physical occupation by settlers—an understanding that is consistent with the Indian negotiators’ cultural understanding
of land occupancy, to which we now turn.
660                                                           State v. Begay

C. The Yakamas’ Understanding of Land Occupancy
         Interpreting treaties between the United States
and Indians “present[s] an especially difficult challenge”
due to the cultural differences between those groups:
    “A great and unbridgeable void existed between the language and culture of the two races. … Accordingly, tribes
    likely understood various treaty provisions very differently
    from how Anglo-Americans might have construed them.
    … Because Indian treaties were the products of agreement between two very different civilizations, interpreters of the documents must navigate the unique cultural
    divide[.]”
Jacob Schuman, Indian Canon Originalism, 126 Harv L Rev
1100, 1108-09 (2013) (internal quotation marks omitted). In
navigating that cultural divide, we are cognizant that the
Yakama attending the 1855 treaty negotiations were probably unfamiliar with Western legal concepts and terminology
relating to property ownership, and that those are not the
concepts and terms by which they would have understood
their reserved hunting rights under the Treaty. Justice
Jackson remarked upon the Indians’ lack of familiarity
with Western property concepts in Northwestern Bands of
Shoshone Indians v. United States:
    “We doubt if any interpreter could intelligently translate
    the contents of a writing that deals with the property concept, for the Indians did not have … words to fit ideas that
    have never occurred to them. Ownership meant no more to
    them than to roam the land as a great common, and to possess and enjoy it in the same way that they possessed and
    enjoyed sunlight and the west wind and the feel of spring in
    the air. Acquisitiveness, which develops a law of real property, is an accomplishment only of the ‘civilized.’ ”

, 

, 

 (1945)
(Jackson, J., concurring).7
    7
      In State v. Cutler, 

, 

 (1985), the dissenting
justices acknowledged the cultural differences between Western and Indian concepts of property in a rather forceful rebuke of the majority’s interpretation of a
treaty provision:
    “[I]t is unreasonable to circumstantially infer that the Indians … understood Anglo-Saxon concepts of land occupancy solely on the basis of some
    visits by tribal leaders to white settlements. Such a conclusion, without more
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        Given the Yakamas’ probable lack of familiarity
with Western property concepts, we do not believe they
would have understood “occupation” of land in terms of
holding legal title. Rather, the Yakama and their neighbors
more likely understood “occupation” to mean actual physical
occupation or use of the land. Indeed, as one scholar has
noted,
   “Pacific Northwest Indians probably had no direct cultural
   analogue to the real property notion of title. The opinions
   of anthropologists vary as to whether particular tribes
   claimed distinct areas of land as against other tribes,
   but there is evidence that at least some tribes had strong
   notions of territory. Nevertheless, it may generally be said
   that these territories were defined primarily through physical occupation rather than ownership.
      “When the Indians’ probable lack of understanding of
   the notion of paper title is coupled with their unfamiliarity
   with the English language, it raises doubts as to whether
   Indians understood that land could be ‘occupied’ in the
   absence of actual physical presence.
       “…
      “Because Indians were probably unfamiliar with the
   property concept of title, their perceptions of ‘open and
   unclaimed’ or ‘unoccupied’ were likely based on actual
   physical occupation.”
Bradley I. Nye, Where Do the Buffalo Roam? Determining the
Scope of American Indian Off-Reservation Hunting Rights
in the Pacific Northwest, 67 Wash L Rev 175, 189, 192-93
(1992) (emphasis added); see also R. Douglas Hurt, American
Agriculture: A Brief History 30 (rev 2002) (“[T]he Indians did
not recognize individual rights to land other than the right
of use or occupancy[.]”).
         In light of that cultural backdrop, the Yakama
would not have understood lands to be “occupied” based on
the foreign concept of paper title; instead, “outward signs
of settlement or physical occupation such as houses, fences,
and outbuildings would indicate” to the Yakama whether

   corroborative evidence, is grossly ethnocentric, for it fails to take into account
   the fact that the Indians’ concepts of property, possession, and occupancy
   were different from the white man’s.”
662                                                          State v. Begay

the land was “occupied” within the meaning of the Treaty.
Nye, 67 Wash L Rev at 193.
         It bears noting that, because those physical indications are the sine qua non of “occupation” for treaty purposes, the actual ownership of the land—federal, state, or
private—is not part of the determination of whether that
land is “open and unclaimed” within the meaning of the
Treaty. See Cohen, Cohen’s Handbook of Federal Indian Law
§ 18.04(2)(f) at 1174 (“Neither states nor private property
owners may bar tribal access to areas subject to treaty hunting, fishing, and gathering rights.” (Citing Winans, 

 (holding that under the 1855 Yakima Treaty, Indians
had an easement to go across and use privately owned land
pursuant to their treaty fishing rights).)).8
         In short, owing to the Yakamas’ traditional understanding of “occupied” lands—in addition to their probable
lack of familiarity with Western concepts of property law—
we think the Yakama negotiators would have understood
“occupied” lands to mean lands that bore some indication
of actual physical occupation or use—e.g., fences, houses, or
outbuildings.
D. The Yakamas’ Understanding of “Open and Unclaimed
   Land”
       To sum up, we have construed Article III of the
Yakama Treaty according to the canons prescribed by the
United States Supreme Court, and in so doing, we are
     8
       We note that the appellate courts in Idaho and Montana have determined
that privately owned land is categorically not “open and unclaimed” for purposes
of treaty reserved hunting rights. See, e.g., State v. Arthur, 

,

, cert den, 

 (1954) (“[T]he meaning of ‘open and unclaimed
land,’ as employed in the treaty … was intended to include and embrace such
lands as were not … appropriated to private ownership.”); State v. Stasso, 

, 

 (1977) (“Land owned or occupied by private parties is
in no way open and unclaimed within the contemplation of this treaty.”).
     However, we also note that the Washington State Supreme Court has
affirmed a jury instruction that defined “open and unclaimed land” as requiring “outward indications of such ownership observable to a reasonable man.”
State v. Chambers, 81 Wash 2d 929, 936, 

, cert den, 

(1973). Moreover, the issue of whether private property is categorically not “open
and unclaimed” under the Treaty has not been addressed by the United States
Supreme Court or the Oregon Supreme Court—the only two courts whose decisions would bind this court.
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persuaded—by the Treaty’s words, the circumstances surrounding the Treaty negotiations, and the Yakamas’ cultural
understanding of property occupancy—that the Yakama
negotiators would have understood that their reserved right
to hunt on “open and unclaimed lands” extended to lands
that bear no indication of actual physical occupation, such
as fences, houses, or outbuildings.9
         With that interpretation in mind, we turn next to
its application to the facts of this case.
                           IV. APPLICATION
         As noted above, in resolving the issues raised by
defendant on appeal, we must “determine whether defendant presented any evidence to support the defenses he
sought to assert and evaluate that evidence in the light most
favorable to defendant.” Shields, 289 Or App at 46 (citation
and internal quotation marks omitted). Put differently, we
will uphold the trial court’s decision to withhold defendant’s
treaty defense from the jury “only if there is no evidence in
the record to support one or more elements of the defense.”
Id. at 47. Because the state contended in its motion in limine
that, as a matter of law, defendant was not entitled to present his treaty defense, we briefly address whether the state
is correct in that contention before we turn to examining
whether there is any evidence to support the treaty defense
that defendant sought to assert.
         As previously noted, the state argues that defendant
was not entitled to present his treaty defense, because the parcel
where defendant took the deer was not “open and unclaimed”
as it “had indications of private ownership”—specifically,
    (1) “The [parcel] had been in private ownership by [the landowner’s] family since the 1880s”; (2) “The land immediately
    surrounding the parcel was cultivated”; (3) “A county road

     9
       We note that we would be compelled to reach that same conclusion even
assuming, arguendo, that the meaning of the phrase “open and unclaimed land”
was ambiguous. See Watters, 

 (“[A]mbiguities should be construed in favor of the Native Americans.”); Antoine v. Washington, 

, 

, 

 (1975) (treaty must be interpreted by liberally construing any ambiguities in the text in favor of the tribe); Blackfeet Tribe
of Indians, 

 (canon of construction applicable in Indian law requires
liberal construction, with ambiguous provisions interpreted to the Indians’
benefit).
664                                             State v. Begay

   ran through the property”; (4) “The land across the road
   from the parcel was fenced, as was land on the downhill
   side of [the] parcel”; and (5) “There was a farm structure
   within view of the parcel.”
That evidence, however, is insufficient to require a determination, as a matter of law, that the parcel had indications
of actual physical occupation such that defendant was not
entitled to present his defense to the jury.
         For one, the fact that the parcel had been privately
owned since the 1880s is not, itself, an indication of actual
physical occupation of the parcel—that is precisely the sort
of “paper title” that we have said would have been unfamiliar to the Yakama negotiators in 1855. Moreover, as we said
above, because physical indications are the sine qua non of
“occupation” for treaty purposes, the actual ownership of the
parcel is not part of the determination of whether that land
is “open and unclaimed” for purposes of defendant’s reserved
hunting rights.
         Next, evidence that lands around the parcel had
been cultivated does not establish as a matter of law that
the parcel itself was under actual physical occupation or use;
rather, that evidence could be an indication only that those
surrounding lands were perhaps not “open and unclaimed.”
Likewise, that a county road passes beside the uphill boundary of the parcel does not establish that the parcel itself bore
indications of actual physical occupation signifying that it
was not “open and unclaimed.”
         Similarly, evidence that “land across the road from
the parcel was fenced,” and that “land on the downhill side of
[the] parcel” was fenced does not establish as a matter of law
that the parcel was not “open and unclaimed.” If anything,
evidence that other, nearby pastures had been fenced—in
contradistinction to the unfenced parcel—would likely indicate that the fenced areas were actually physically occupied
areas, whereas the unfenced areas were not.
         Lastly, recalling Vanderwerf’s testimony that he
could see “a silo or something” in “the far, far distance,”
the fact that a farm structure was visible from the parcel
does not establish that the parcel itself was therefore no
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longer “open and unclaimed” land within the meaning of
the Treaty.
         In short, we are not persuaded that any of the evidence proffered by the state would have required a determination, as a matter of law, that the parcel where defendant
killed the deer bore indications of actual physical occupation
and could not, therefore, be “open and unclaimed land.”
         Furthermore, viewed in the light most favorable to
defendant, much of the testimony elicited at the hearing on
the state’s motion in limine provides sufficient evidence to
raise the defense that the parcel was “open and unclaimed
land” within the meaning of the Treaty: The parcel was “just
an open field” with grass “stubble” and sagebrush; it was not
planted or cultivated; it had no fences on it or enclosing it;
there were no signs present indicating its ownership; there
were no vehicles parked on it; and there were no houses or
other buildings on it. In other words, the parcel bore no indications of actual physical occupation.
         Consequently, we conclude that there was sufficient
evidence in the record to support defendant’s treaty defense
that the parcel where he killed the deer would have been
considered “open and unclaimed land” within the meaning
of Article III of the 1855 Yakama Treaty.
         As such, defendant was entitled to raise his treaty
defense at trial; therefore, the trial court erred when it
granted the state’s motion in limine to prohibit defendant
from doing so. Accordingly, we reverse defendant’s conviction, and we remand for a new trial.
        Reversed and remanded.