Appeal from the District Court of Eddy County, Southeast Judicial District, the Honorable Thomas E. Merrick, Judge.
Travis S. Peterson (on brief), State's Attorney, and Charles M. Carvell (argued), Special Assistant Attorney General, for plaintiff and appellee.
Robert C. Fleming, for defendant and appellant.
[¶ 1] Glen Delorme appeals a district court judgment after having conditionally pled guilty to two counts of guiding or outfitting without a license, a class A misdemeanor, in violation of N.D.C.C. § 20.1-03-40. We affirm.
[¶ 2] Delorme was charged with two counts of guiding or outfitting without a license in Eddy County in violation of N.D.C.C. § 20.1-03-40 after guiding two undercover North Dakota Game and Fish Wardens to multiple hunting sites. The guiding expedition took place both on and off the Spirit Lake Indian Reservation. Delorme moved to dismiss the charges because of lack of subject matter jurisdiction, arguing the alleged crime took place on land reserved for the Pembina Band of Chippewa, where his aboriginal rights to hunt, fish, and gather are preserved by an 1863 treaty. The State opposed Delorme's motion, arguing Delorme was charged with guiding or outfitting only on land outside the reservation and subject matter jurisdiction was not in dispute. The district court denied Delorme's motion to dismiss, concluding Delorme failed to show how his offense fell outside of the court's subject matter jurisdiction. The court noted, "When the veneer is scraped from his argument, what Mr. Delorme seeks is unequal protection of the law based on his race, something inimical to North Dakota law."
[¶ 3] The State moved before trial to exclude all evidence related to any affirmative defenses, including entrapment, and to also exclude arguments related to subject matter jurisdiction. The State, arguing in favor of its motion, stated:
[I]t is undisputed that the alleged offenses took place in Eddy County, ND. The Court previously addressed and ruled on this issue. Any reference by Defendant to the issue of subject matter jurisdiction serves no purpose and will only distract the jury and introduce factual issues not relevant to the charged offenses.
[¶ 4] The district court granted the State's motion, excluding any evidence concerning subject matter jurisdiction or any reference to the land on which the crimes took place as being part of an Indian reservation. Delorme then entered a conditional guilty plea, preserving his right to appeal the district court's decisions on the two motions. Delorme was sentenced to pay $1, 390 in fines and court fees and costs and was placed on unsupervised probation.
[¶ 5] On appeal, Delorme argues the district court erred when it denied his motion to dismiss for lack of subject matter jurisdiction, because his aboriginal usufructuary  rights are guaranteed and preserved by the 1863 Treaty of Old Crossing. Delorme also argues the district court erred by granting the State's motion to exclude all evidence referring to the land on which the guiding and fishing took place as being a part of an Indian reservation.
[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. Delorme's appeal is timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.