State v. Moses

Stafford, J.

(concurring in dissent) — Justice Finley has referred to the majority’s failure to come to grips with the fundamental problem of delineating the point at which federally protected Indian fishing rights end and the power of the state to regulate those rights begins under article 5 of the Treaty of Point Elliott. 12 That shortcoming is not limited to this case, however. It is to be found in most cases that have dealt with this extremely vexing question.

Unfortunately, we have been too prone to interpret article 5 in terms of the practicalities of today’s depleted fishery. As a result, we have overlooked the historical background of an agreement reached jointly by the Indians and the federal government in 1855. We have attempted to ascertain the meaning of a treaty executed in 1855 by reference to the exigencies of today rather than by consideration of the circumstances that actually surrounded the contracting parties in 1855. As a result we have approached the task of interpretation from the wrong end.

The meaning attached to the treaty by the contracting parties must be ascertained by the facts and circumstances that surrounded them at the time the treaty was negotiated. Winters v. United States, 207 U.S. 564 , 52 L. Ed. 340 , 28 S. Ct. 207 (1908). This includes such matters as the original needs and wants of the Indians, Winters v. United States, supra; Conrad Inv. Co. v. United States, 161 F. 829 (1908); and how they satisfied those needs and wants im *137 mediately before and after the treaty, State v. Edwards, 188 Wash. 467 , 62 P.2d 1094 (1936). As so aptly stated in Tulee v. Washington, 315 U.S. 681, 684 , 86 L. Ed. 2d 1115 , 62 S. Ct. 862 (1942):

It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at the council, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.

(Italics mine.)

To say merely that the Indians were a “fish eating” people conveys an incorrect impression. It is clear that they caught fish in order to exist. Not only was fish the mainstay of their diet in the spring and summer, it was dried and stored for winter as well. 13

It is illogical to assume the Indians would have agreed voluntarily or knowingly to reduce the area of their occupancy and also to give up the very fish that would make the contemplated reservations livable or adequate. Winters v. United States, supra; United States v. Ahtanum Irr. Dist., 236 F.2d 321 (1956).

It is not necessary, however, to speculate upon the Indians’ need to fish or to guess about the federal government’s intention that they have the right to meet that need. One need only refer to the minutes of the Treaty Council, January 22,1855. 14

In considering the minutes it must be remembered that Governor Stevens spoke to an assemblage of Indians who understood no English, thus, it was necessary to rely upon interpreters. The Indians were neither masters of a written language nor skilled in matters of diplomacy. Governor *138 Stevens’ audience was composed of uncivilized 15 men and women whose very existence depended upon fish both to eat and to sell to the settlers. How would they have interpreted the glowing words that follow:

My children, you are not my children because you are the fruit of my loins but because you are children for whom I have the same feeling for from [sic. probably means “as if”] little children the fruit of my loins. You are my children because I will labor for you persistently for all of my life. What will a man do for his children. A man for his own children will see that they are well cared for. He will see that they have clothes to guard them from the wintry season. He will see that they have food to guard them against being hungry. And as for thirst you have your own glorious brooks. But as for food you yourselves now, as in times past, can take care of yourselves.

I have called you my children and as my children I have spoken to you of the food that could save you from hunger and your flowing brooks that could save you from thirst but I give to my own children food and drink and sometimes more. I want that you shall not have simply food and drink now but that you may have them forever . . .

You understand well my purpose, now you want to know what we desire to do for you. We want to give you houses and having homes you will have the means and the opportunity to cultivate the soil to get your potatoes and to go over these waters in your canoes to get fish. We want more. If you desire to go back to the mountains and get your roots and your berries you can do so and you shall have homes and shall have these rights, the Great Father desiring them.

The Great Father wants you to have a school where you can learn agriculture and to be artisans and to get two blankets when you have one now and learn to take *139 care of yourself as white people the Great Father wants this in fact. He wants you to have a place where your children can learn to read and write, learn to be farmers and mechanics and also wants you to take your fish and go back to the mountains and get berries. Is this good, don't you want this?

(Italics mine.)

As can be seen, Governor Stevens made it abundantly clear that the Indians could fish as they had since the time of their forefathers. His overpowering explanation of the treaty contained no mention of restricting those rights. The speech omitted any reference to “taking fish at usual and accustomed grounds and stations” or fishing “in common with all citizens of the Territory.” These expressions, which have caused so much bitter litigation, first appeared in the written treaty.

It is true the Governor mentioned the two ideas during negotiations with other tribes near Walla Walla, State v. Tulee, 7 Wn.2d 124, 146 , 109 P.2d 280 (1941). But, those negotiations' involved different treaties and different tribes, far removed from those with which we are here concerned.

The minutes of the Walla Walla Conference of May 29, 1855 16 do, nevertheless, cast light on the problem at hand. Governor Stevens told those Indians of the Treaty of Point Elliott and discussed the fundamental needs of the Puget Sound Indians as follows:

I have made treaties with all the Indians on that Sound. They number more than all the tribes present. They have all agreed . . . to go on one reservation. That reservation is only about one-fiftieth part as large as this; they have however, few horses and cattle. They have not three hundred head. They take salmon and catch whale and make oil. They ask for no more land. They think they have land enough. You will be farmers and stock raisers and wool growers and you need more.

(Italics mine.)

It is evident that the Governor did not seriously consider that the Puget Sound Indians were to be farmers and stock *140 raisers. They had been and were to be fishermen. It is obvious that these Indians estimated their situation similarly in light of the reservations they were willing to accept. They were well suited to the kind of life they had lived and the manner in which they had always supported themselves, as long as they retained the right to fish in the manner implied by Governor Stevens in his impressive speech.

The Governor’s statements were made at a time when the northwest was a wilderness. They were made at a time when Indians and white men alike hunted and fished as they desired without let or hindrance from the federal or territorial governments. The regulation of fish and game was neither known nor dreamed of. The Indians had fished in the area since time immemorial. The catching of fish was necessary for the sustenance of themselves and their families. Neither the Governor nor the Indian chiefs could possibly have visualized present day restrictions. They entered into the treaty under conditions as they existed at that time. Thus, we must interpret the treaty and the rights of the Indians in light of what they then knew about need for regulation, keeping in mind that both parties planned that the needs and abilities of the Indians would obviously grow in the future. 17

*141 If the Governor and the federal government were sincere in their negotiations and if the promises were made in good faith, as I am sure they were, then all of the facts connected with the making of the treaty should be considered in arriving at the intent of the parties. This would of necessity include Governor Stevens’ explanation made to a people who had no written language and whose only knowledge of the terms of the treaty was that imparted to them by the Governor and the interpreter employed by the United States. As we said in State v. Edwards, 188 Wash, at 471, quoting from Jones v. Meehan, 175 U.S. 1 , 44 L. Ed. 49 , 20 S. Ct. 1 (1899):

“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, are a weak and dependent people, who have no written language and are 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; and that the treaty must therefore 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.

In retrospect, it seems almost irony that Governor Stevens had been instructed to negotiate a treaty that would, *142 insofar as possible, avoid misunderstandings in the future. Unfortunately, the result was far wide of that idealistic mark.

Regrettably, article 5 has caused the very misunderstanding it was intended to avoid. The economic and socio-legal interests of competing users of the depleted fishery have faced an ever-widening gulf.

Justice Finley has suggested one possible means of threading our way through the quagmire that has evolved from an assertion of competing rights on an “all or nothing” basis. He suggests that both the state of Washington and the Indians have rights that must be recognized. The Indians, however, have federally protected treaty rights that must receive definitive consideration in the exercise of any state regulatory measure. He suggests further that problems peculiar to each river require that the matter be resolved on a river-by-river basis.

There is another approach to this vexing problem. Usually federal treaties are handled on a federal level. This federal treaty should be dealt with similarly to insure uniform interpretation and application.

Although Congress has refrained from doing so in this instance, it has the power to abrogate or change treaty rights by passing a clear and express act which is of such a nature that the treaty and the act cannot in any reasonable view stand together. Stephens v. Cherokee Nation, 174 U.S. 445 , 43 L. Ed. 1041 , 19 S. Ct. 722 (1899); Seneca Nation of Indians v. Brucker, 262 F.2d 27 (1958); Nicodemus v. Washington Water Power Co., 264 F.2d 614 (1959); United States v. 5,677.94 Acres of Land, More or Less, of Crow Reservation, 162 F. Supp. 108 (1958). Thus, Congress has the power to regulate Indian fishing rights.

Seneca Nation of Indians v. Brucker, supra; Nicodemus v. Washington Water Power Co., supra; and United States v. 5,677.94 Acres of Land, More or Less, of Crow Reservation, supra, all involve the federal government’s use of eminent domain to acquire Indian property rights. In each *143 case, the Indians involved were paid just compensation for the right taken or invaded.

It is suggested that the federal government has the power to acquire the Indians’ treaty fishing rights by eminent domain. To do so, however, the federal government would be required to pay just compensation to those tribes having such federally protected fishing rights.

This procedure would eliminate the problem for all competing interests. All would be placed on an equal footing, subject to the same regulations. The festering sore of misunderstanding would be removed.

Insofar as relevant, article 5 of the Treaty of Point Elliott provides:

The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands.

(Italics mine.) 12 Stat. 927 (1863).

Article 5 of the treaty supports this view by providing for the right of “erecting temporary houses for the purpose of curing [fish is the only subject under consideration at that point in the treaty], together with the privilege of hunting and gathering roots and berries on open and unclaimed lands.”

These minutes are preserved and are available at the National Archives.

The -word “uncivilized” does not mean that they lacked a culture. In comparison, however, it was a culture totally unprepared to cope with the matters being resolved and the method of resolution. They were in an unequal negotiating position from the standpoint of diplomacy. State v. Edwards, 188 Wash. 467 , 62 P.2d 1094 (1936).

These minutes are preserved and available at the National Archives.

(A.) Minutes of the Treaty Council, January 22, 1855, Treaty of Point Elliott.

“The Great Father wants you to have a school where you can learn agriculture and to be artisans and to get two blankets when you have one now and learn to take care of yourself as white people the Great Father wants this in fact. He wants you to have a place where your children can learn to read and write, learn to be farmers and mechanics and also wants you to take your fish and go back to the mountains and get berries. Is this good, don’t you want this?” (Italics mine.) (B.) The Treaty of Point Elliott, 12 Stat. 927 (1863).

“Article XIV. The United States further agree to establish at the general agency for the district of Puget’s Sound, within one year from the ratification hereof, and to support for a period of twenty years, an agricultural and industrial school, to be free to children of the said tribes and bands in common with those of the other tribes of said district, and to provide the said school with a suitable instructor or instructors, and also to provide a smithy and carpenter’s shop, and furnish them with the necessary tools, and employ a blacksmith, car *141 penter, and farmer for the like term of twenty years to instruct the Indians in their respective occupations. And the United States finally agree to employ a physician to reside at the said central agency, who shall furnish medicine and advice to their sick, and shall vaccinate them; the expenses of said school, shops, persons employed, and medical attendance to be defrayed by the United States, and not deducted from the annuities.”