
    UNITED STATES of America, Plaintiff, v. Darrell R. MOMBERG, Defendant.
    No. CR 74-21-M.
    United States District Court, D. Montana, Missoula Division.
    July 15, 1974.
    
      Keith L. Burrowes, Asst. U. S. Atty., Billings, Mont., for plaintiff.
    Philip E. Roy, Browning, Mont., and Daniel H. Israel, Native American Rights Fund, Boulder, Colo., for defendant.
   JUDGMENT

RUSSELL E. SMITH, Chief Judge.

I find the defendant guilty of the crime charged. The defendant is fined the sum of One Dollar ($1.00) and the execution of the judgment is suspended.

I find that the defendant, a Blackfeet Indian, cut a piece of dead wood from a live tree in Glacier National Park in violation of 36 C.F.R. § 2.20(a.l). He did this for the purpose of testing the Indian rights in that part of Glacier Park lying east of the Rocky Mountains. The wood so cut was obviously not cut for any of the purposes mentioned in the agreement of September 26, 1895, ratified June 10, 1896 (29 Stat. 353) and hence the defendant has no defense based upon that agreement.

There has now been called to my attention for the first time the decision of the Court of Claims in The Blackfeet (and other) Tribes of Indians v. United States, 81 Ct.Cl. 101 (1935). In view of the disposition which I have made of the case it is now unnecessary to determine, and I do not now determine, whether the Court of Claims did not in fact adjudicate the rights of the Blackfeet Indians to the lands in Glacier Park lying east of the Rocky Mountains. Nor do I determine the effect of the unappealed decision in United States v. Kipp, 369 F. Supp. 774 (D.Mont.1974), which reached a contrary, perhaps theoretically correct, but possibly impermissible conclusion as to the effect of the Act of May 11, 1910 (36 Stat. 354) creating Glacier Park. 
      
      . "Prior to the act of May 11, 1910, the Indians of the Blackfeet Reservation did not exercise to any appreciable extent the rights reserved in the aforesaid agreement of September 26, 1895, to hunt and fish in and remove timber from the land ceded in the agreement, and such rights were authoritatively terminated by the limitations of the act of May 11, 1910.” Blackfeet (and other) Tribes of Indians v. United States, supra, at 115.
     
      
      . “I conclude that the reserved rights were not extinguished by the act creating Glacier Park.” United States v. Kipp, supra, at 778.
     