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BISCUP v. NEW YORK

March 25, 1955.

Robert BISCUP, Petitioner,
v.
PEOPLE of the STATE of New YORK, Respondent.



The opinion of the court was delivered by: KNIGHT

KNIGHT, Chief Judge.

Robert Biscup, an Indian and a member of the Seneca nation, has applied to this Court for removal of a criminal proceeding instituted before a Justice of the Peace in the town of Carrollton in the County of Cattaraugus, New York.

 Biscup was arrested and charged with the violation of Section 185 of the Conservation Law of the State of New York, McK.Consol.Laws, c. 65. That Act, insofar as applicable, provides as follows:

 "§ 185. Big game license; open seasons; limit; manner of taking; possession; transportation;

 "1. Special license required. No person shall hunt, pursue or kill any deer or bear with a gun or long bow without first having procured a big game license in the manner provided in subdivision three of section one hundred eighty.

 "* * * * * * *

 "(c) If an Indian resident, or a member of the six nations residing on a reservation wholly or partly within the state, to take wild deer having horns not less than three inches in length and bear not less than one year old, two dollars as a license fee and twenty-five cents to the issuing clerk.

 "* * *

 "4. Transportation. The taker may transport the entire carcass of one deer; the head and carcass separately; portions of the carcass; as hereinafter provided.

 "The taker may transport the entire carcass of his deer provided the head is attached thereto in a natural way and to the carcass is attached his license-tag."

 Biscup was apprehended on November 17, 1954 in Allegany State Park, which is not part of the reservation of the Seneca nation, by an officer of the Conservation Department, while he was transporting two hind quarters of deer meat, which were untagged and which he had killed on the Allegany Indian reservation. Biscup was arraigned before the Justice of the Peace in the town of Carrollton on December 4, 1954, for violation of Section 185 supra. Biscup at that time appeared specially and raised the question of the jurisdiction of the Justice's Court to try him on the ground that he was not required, as an Indian and member of the Seneca nation, to have a hunting license and that such rights were preserved to him by Federal statutes and treaties between the Seneca nation and the United States.

 The State Court held that it had jurisdiction to try the offense and that Biscup, even though an Indian, residing on the Seneca Indian reservation, was required to obtain a hunting license and that he was guilty as charged for the transportation of the deer which was untagged.

 At the trial it appeared that the deer in question had been slain by Biscup on the Allegany reservation and transported by him to the place where he was arrested.

 In finding the defendant guilty the State Court imposed a sentence of 60 days and suspended the same. Notice of appeal was subsequently filed to the Cattaraugus County Court and the present application to remove was ...


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