Charges against a Navajo man accused of illegal hunting in San Juan County should be dropped in the interest of justice, the state attorney general's office says.
But the accused man's attorney on Thursday promised to resist any efforts to clear his client without a court fight and said he would even help the prosecution in order to have the case tried.In November, Eddie Holiday, 25, was charged with failing to properly tag a deer he shot Oct. 27 in South Cottonwood Canyon near Blanding. Kevin Conway, regional enforcement officer for the state Division of Natural Resources, said Holiday had failed to leave either the head or sex organs on the deer, making it impossible for game officials to determine the deer's gender.
The crime is a misdemeanor violation of Utah hunting laws. But Holiday's supporters say the issue is really whether state laws run counter to treaty rights set in 1868.
"We're intending to raise only the constitutional issue, and if necessary I will (present) the evidence to prove they have a case. I'll do the prosecutor's job for him," said John O'Connell, Holiday's attorney.
Holiday's defense was to have centered on the claim that he was hunting in the traditional Navajo way on aboriginal Navajo land, and therefore was protected under a treaty agreement.
Reservation law requires the head to be left on for proper tagging. Navajos hunting in the traditional way incorporate religious customs and ceremonies, including burying the head and other parts of animals not used for food at the site where the animal was killed.
San Juan County Attorney Craig Halls asked to postpone Holiday's January court date until April, and also asked the state attorney general's office for assistance in the case because of the amount of legal and historical research that would be necessary to prosecute the case.
Last Friday, assistant Attorney General Paula K. Smith sent a letter to Halls recommending that he move to dismiss the charge "in the interest of justice."
In her letter, Smith said the attorney general's office agreed that Holiday's case is a significant one that could have impacts in Arizona and New Mexico as well as Utah.
However, she said, researching the case would require a trip to Washington, D.C., and could take as long as a year to complete, leaving Holiday subject to criminal charges for that period of time.
Smith said the attorney general's office would be interested in "discussing hunting issues" with Utah Navajos and the Navajo Nation, and added that Holiday "was cited only for failure to properly tag, and it appears that he had state tags in his possession."
Halls, contacted in his Blanding office Thursday, said "we will probably dismiss the charges."
The attorney general's office was too busy to assist in the case, he said. "We need some time to be able to research these issues."
O'Connell disputed Smith's assertions - the research would neither take a year nor require a trip to Washington, he said - and wrote to Halls to say he wanted to be present when the prosecutor made his motion to dismiss the case so he could argue his point.
If the judge hearing the case decides to grant a motion to dismiss, Navajos who want to pursue the treaty rights issue could do so in a civil suit. "Or they could just go shoot a deer and clean it in front of the Division of Wildlife Resources and keep doing it until (officials) do something," O'Connell said. "But that's silly.
"A criminal case is a good vehicle for establishing constitutional rights, and it's simpler and cheaper than bringing federal action," O'Connell said.
Navajos have for some time pushed state officials to recognize most of San Juan County as traditional hunting grounds and to change the laws that make it impossible to hunt legally in the traditional Navajo way - something they say is guaranteed them under the 1868 treaty.
There is some dispute whether the treaty applies only to Arizona and New Mexico, and not to Utah, since the Utah Strip was added later by executive order.
But O'Connell said that could mean Utah reservation land was never actually ceded to the United States at all. "If that's so, the land north of the San Juan River still belongs to the Navajos," he said.