State v. McCoy

Donworth, J.

(dissenting) — The scholarly discussion by the majority concerning the very important issue presented by this case makes no mention of our most recent decision dealing with the subject of the impact of the Indian treaties on the police power of the state to regulate fishing by tribal Indians “at all usual and accustomed grounds and stations.”

*440 In State v. Satiacum, 50 Wn. (2d) 513, 314 P. (2d) 400 (1957), there were two opinions, each of which had the concurrence of four judges. In the first opinion, many of the decisions of the United States Supreme Court (some of which are cited in the majority opinion in this case) were discussed at length. The result of the first opinion (which was concurred in only as to the result by the four judges who signed the second opinion) was to affirm the trial court’s dismissal of certain charges against two Puyallup Indians based on alleged violations of the provisions of RCW 75.12 (and regulations promulgated pursuant thereto). The defendants in that case had been fishing with nets on the Puyallup River within the city limits of Tacoma. It was stipulated that one net was within the limits of the Puyallup Indian Reservation and that the other was at a usual and accustomed fishing ground of the Puyallup tribe as provided in the 1855 treaty of Medicine Creek.

The first opinion held that the statutes involved violated the treaty. The basis for this holding was the result of an extensive review of many decisions of the Supreme Court of the United States (including Tulee v. Washington, 315 U. S. 681 , 86 L. Ed. 1115 , 62 S. Ct. 862 ) and of other appellate courts construing Indian treaties and treaties with foreign nations, which have been held to be the supreme law of the land under Art. 6 of the United States Constitution. In the first opinion it was stated:

“The courts have generally recognized that the treaty right of fishing at ‘usual and accustomed places’ was given to the Indians to provide for their subsistence and as a means for them to earn a livelihood. United States v. Winans, supra [ 198 U. S. 371 ]; Makah Indian Tribe v. Schoettler, supra [192 F. (2d) 224]; State v. McClure, supra [ 127 Mont. 534 ]. Applying a liberal — and not a strained— construction to the treaty of Medicine Creek as a whole, it is our opinion that the Puyallup Indians so understood Article III of the treaty, and that neither the Indians nor the United States intended that the states would or could enforce general regulations against the Indians ‘equally with others’ or ‘in common with all citizens of the Territory’ and thereby deprive them of their right to hunt and fish in *441 accordance with the immemorial customs of their tribes. As we interpret the treaty, we believe that the phrase ‘in common with all citizens of the Territory’ merely granted the white settlers and their heirs and/or grantees a right to fish at these places with the Indians, but that the Indians thereby reserved their right to fish at these places irrespective of state regulation, so long as the right shall not have been abrogated by the United States.

“No other conclusion would give effect to the treaty, since to hold that their right was equal to that of the citizens of the territory would be to say that they were given no right at all, except that which any citizen subject to state statutes and regulations may enjoy to fish at the ‘usual and accustomed grounds and stations.’ This interpretation would permit the state to abrogate their treaty rights at will.

“We are convinced that, under the applicable decisions of the supreme court of the United States referred to herein, the statutes and regulations in the case at bar are in conflict with the treaty provisions, constitute an interference with matters that are within the exclusive scope of Federal power and, therefore, cannot be held valid as to the Puyallup Indians, in relation to their right to fish ‘at all usual and accustomed fishing grounds and stations.’ U

“To summarize, the treaty of Medicine Creek of 1855 is the supreme law of the land and, as such, is binding upon this court, notwithstanding any statute of this state to the contrary, and its provisions will continue to be superior to the exercise of the state’s police power respecting the regulating of fishing at the places where the treaty is applicable until:

“(1) the treaty is modified or abrogated by act of Congress, or

“ (2) the treaty is voluntarily abandoned by the Puyallup tribe, or

“(3) the supreme court of the United States reverses or modifies our decision in this case.”

I still adhere to the views expressed in the first opinion for the reasons hereinafter stated.

The basis for the concurrence in the result in the Satiacum case by the four judges who signed the second opinion is stated in the last paragraph thereof as follows:

“The trial court decided this case against the state on the ground that the state had failed to sustain the burden of *442 proving that the regulation was reasonable and necessary or rather, that the enforcement of the regulation against the defendants was reasonable and necessary for the preservation of fish. In doing so, the court adopted the holding of Makdh v. Schoettler, supra. It is the general rule that such a regulation is presumed to be valid and the burden of proving its invalidity is upon the party challenging the regulation. The court, however, felt that in such a case as this — where the enforcement of the regulation, if not reasonable and necessary, would infringe a treaty right of the Indian — the burden should be upon the state to show that the violation of the regulation by the Indian threatens the conservation program. I would uphold the trial court in its disposition of the cause, for it is true that the state made no attempt to show that the conservation program was seriously affected by the fishing activities of the defendants or of the Indians generally. But I would not go further, as the majority has, to say that the treaty intended that the state may never interfere with fishing by Indians in their usual and accustomed places, no matter how wasteful and destructive their fishing may be. Such a holding is unnecessary to a decision of the case. Furthermore, I think it is unwarranted under the facts and the law.”

Thus, this court, in 1957, upon the concurrence of eight judges, upheld the dismissal by the trial court of similar charges against treaty Indians. I think that our two opinions in the Satiacum case should not be ignored in deciding the present case. At least, if the first opinion is to be wiped off the books, it should be made a matter of record and not done sub silentio.

The majority rely on two recent decisions of the United States Supreme Court which discuss the fishing rights of nontreaty Indians in Alaska. They are Metlakatla Indian Community v. Egan, 369 U. S. 45 , 7 L. Ed. (2d) 562, 82 S. Ct. 552 (1962), and Organized Village of Kake v. Egan, 369 U. S. 60 , 7 L. Ed. (2d) 573, 82 S. Ct. 562 (1962). These cases, being the only expression of the Supreme Court on the subject of Indian fishing rights since our decision in the Satiacum case (which was decided in 1957), should be reviewed in some detail.

The Metlakatla case was an appeal from the decision of the Alaska Supreme Court (Alaska, 362 P. (2d) 901 ) which *443 affirmed the denial of an injunction which would have prevented the state of Alaska from interfering with the Metlakatlas’ use of certain fish traps near the Annette Islands. These fish traps had been used by the Indians for many years to catch salmon pursuant to regulations promulgated by the Secretary of the Interior long prior to statehood. A statute enacted by the Alaskan legislature in 1959 prohibited the use of fish traps of the type used by these Indians. It is to be noted that the Metlakatlans were not aboriginal natives of Alaska but had migrated there from Canada in 1887. They never had a treaty with the United States. The court’s decision was based on its interpretation of the act of Congress of 1891 creating the Annette Islands Reserve.

The companion case (Organized Village of Kake v. Egan) likewise involved the interpretation of federal statutes. It involved the fishing rights of two Indian communities chartered under the Wheeler-Howard Act of 1934. No treaty rights were involved, although the decision discusses Indian treaties at some length. This discussion is too long to quote in full in this dissenting opinion. The following excerpts indicate the court’s rationale regarding Indian rights:

“The relation between the Indians and the States has by no means remained constant since the days of John Marshall. In the early years, as the white man pressed against Indians in the eastern part of the continent, it was the policy of the United States to isolate the tribes on territories of their own beyond the Mississippi, where they were quite free to govern themselves. The 1828 treaty with the Cherokee Nation, 7 Stat. 311 , guaranteed the Indians their lands would never be subjected to the jurisdiction of any State or Territory. Even the Federal Government itself asserted its power over these reservations only to punish crimes committed by or against non-Indians. 1 Stat. 469 , 470; 2 Stat. 139 . See 18 U.S.C. § 1152 .

“As the United States spread westward, it became evident that there was no place where the Indians could be forever isolated. In recognition of this fact the United States began to consider the Indians less as foreign nations and more as a part of our country. In 1871 the power to make treaties with Indian tribes was abolished, 16 Stat. 544 , 566, 25 U.S.C. § 71 . In 1887 Congress passed the General Allot *444 ment Act, 24 Stat. 388 , as amended, 25 U.S.C. §§ 331-358 , authorizing the division of reservation land among individual Indians with a view toward their eventual assimilation into our society. In 1885, departing from the decision in Ex parte Crow Dog, 109 U. S. 556 , Congress intruded upon reservation self-government to extend federal criminal law over several specified crimes committed by one Indian against another on Indian land, 23 Stat. 362 , 385, as amended, 18 U.S.C. § 1153 ; United States v. Kagama, 118 U. S. 375 . Other offenses remained matters for the tribe, United States v. Quiver, 241 U. S. 602 .

“The general notion drawn from Chief Justice Marshall’s opinion in Worcester v. Georgia, 6 Pet. 515, 561 ; The Kansas Indians, 5 Wall. 737, 755-757 ; and The New York Indians, 5 Wall. 761 , that an Indian reservation is a distinct nation within whose boundaries state law cannot penetrate, has yielded to closer analysis when confronted, in the course of subsequent developments, with diverse concrete situations. By 1880 the Court no longer viewed reservations as distinct nations. On the contrary, it was said that a reservation was in many cases a part of the surrounding State or Territory, and subject to its jurisdiction except as forbidden by federal law, Utah & Northern R. Co. v. Fisher, 116 U. S. 28, 31 . In Langford v. Monteith, 102 U. S. 145 , the Court held that process might be served within a reservation for a suit in territorial court between two non-Indians. In United States v. McBratney, 104 U. S. 621 , and Draper v. United States, 164 U. S. 240 , the Court held that murder of one non-Indian by another on a reservation was a matter for state law.

“The policy of assimilation was reversed abruptly in 1934. A great many allottees of reservation lands had sold them and disposed of the proceeds. Further allotments were prohibited in order to safeguard remaining Indian properties. The Secretary of the Interior was authorized to create new reservations and to add lands to existing ones. Tribes were permitted to become chartered federal corporations with powers to manage their affairs, and to organize and adopt constitutions for their own self-government. 48 Stat. 984 , 986, 987, 988. These provisions were soon extended to Alaska, 49 Stat. 1250 .

“Concurrently the influence of state law increased rather than decreased. As the result of a report making unfavorable comparisons between Indian Service activities and those of the States, Congress in 1929 authorized the States to enforce sanitation and quarantine laws on Indian reser *445 vations, to make inspections for health and educational purposes, and to enforce compulsory school attendance. 45 Stat. 1185 , as amended, 25 U.S.C. § 231 . See Meriam, Problem of Indian Administration (1928); H. R. Rep. No. 2135, 70th Cong., 2d Sess. (1929); Cohen, Handbook of Federal Indian Law (1945), p. 83; United States Department of the Interior, Federal Indian Law (1958), pp. 126-127. In 1934 Congress authorized the Secretary of the Interior to enter into contracts with States for the extension of educational, medical, agricultural, and welfare assistance to reservations, 48 Stat. 596 , 25 U.S.C. § 452 . During the 1940’s several States were permitted to assert criminal jurisdiction, and sometimes civil jurisdiction as well, over certain Indian reservations. E.g., 62 Stat. 1161 ; 62 Stat. 1224 ; 64 Stat. 845 ; 63 Stat. 705 . A new shift in policy toward termination of federal responsibility and assimilation of reservation Indians resulted in the abolition of several reservations during the 1950’s. E.g., 68 Stat. 250 (Menominees); 68 Stat. 718 (Klamaths).

“In 1953 Congress granted to several States full civil and criminal jurisdiction over Indian reservations, consenting to the assumption of such jurisdiction by any additional States making adequate provision for this in the future. 67 Stat. 588 , 18 U.S.C. § 1162 , 28 U.S.C. § 1360 . Alaska was added to the list of such States in 1958, 72 Stat. 545 . This statute disclaims the intention to permit States to interfere with federally granted fishing privileges or uses of property. Finally, the sale of liquor on reservations has been permitted subject to state law, on consent of the tribe itself. 67 Stat. 586 , 18 U.S.C. § 1161 . Thus Congress has to a substantial degree opened the doors of reservations to state laws, in marked contrast to what prevailed in the time of Chief Justice Marshall.” 2

Later, in the Supreme Court’s decision in the Kake case, the court reviews a number of decisions and federal statutes and concludes:

“. . . Even where reserved by federal treaties, off-reservation hunting and fishing rights have been held subject to state regulation, Ward v. Race Horse, 163 U. S. 504 ; Tulee v. Washington, 315 U. S. 681 , in contrast to *446 holdings by state and federal courts that Washington could not apply the laws enforced in Tulee to fishing within a reservation, Pioneer Packing Co. v. Winslow, 159 Wash. 655 , 294 P. 557 ; Moore v. United States, 157 F. 2d 760, 765 (C.A. 9th Cir.). See State v. Cooney, 77 Minn. 518 , 80 N. W. 696 .

“True, in Tulee the right conferred was to fish in common with others, while appellants here claim exclusive rights. But state regulation of off-reservation fishing certainly does not impinge on treaty-protected reservation self-government, the factor found decisive in Williams v. Lee.[ 3 ] Nor have appellants any fishing rights derived from federal laws. This Court has never held that States lack power to regulate the exercise of aboriginal Indian rights, such as claimed here, or of those based on occupancy. Because of the migratory habits of salmon, fish traps at Kake and Angoon are no merely local matter.”

I think it appropriate at this point to consider the holding in the Tulee case (7 Wn. (2d) 124, 109 P. (2d) 280 (1941)), which is cited in the foregoing quotation.

In that case, a member of the Yakima tribe of Indians was charged with having caught salmon with a dip bag net and with selling such fish commercially without having obtained a fishing license (costing $5) as required by statute. The place where the offense was alleged to have been committed was at one of the usual and accustomed ancient fishing places of the tribe referred to in the treaty of June 9, 1855 (12 U. S. Stat. 951). The defendant was convicted and appealed to this court, which held (by a vote of 5 to 3) that the treaty right to fish at such places was subject to the statutes of the state governing the taking of fish. In effect, the majority of this court held that the police power of the state was supreme and that the treaty-making power of the Federal Government was subordinate thereto in respect to fishing regulations.

*447 The Indian whose conviction was thus affirmed appealed to the United States Supreme Court, where the decision of this court was reversed. Tulee v. Washington, 315 U. S. 681 , 86 L. Ed. 1115 , 62 S. Ct. 862 (1942). The supremacy of the treaty right of Yakima Indians to fish at their usual and accustomed places over the power of the state to exact a $5 fishing license was recognized by the Supreme Court in the following quotation from its opinion, at page 684:

“In determining the scope of the reserved rights of hunting and fishing, we must not give the treaty the narrowest construction it will bear. In United States v. Winans, 198 U. S. 371 , this Court held that, despite the phrase ‘in common with citizens of the Territory,’ Article III conferred upon the Yakimas continuing rights, beyond those which other citizens may enjoy, to fish at their ‘usual and accustomed places’ in the ceded area; and in Seufert Bros. Co. v. United States, 249 U. S. 194 , a similar conclusion was reached even with respect to places outside the ceded area. From the report set out in the record before us, of the proceedings in the long council at which the treaty agreement was reached, we are impressed by the strong desire the Indians had to retain the right to hunt and fish in accordance with the immemorial customs of their tribes. 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. United States v. Kagama, 118 U. S. 375, 384 ; Seufert Bros. Co. v. United States, supra, 198-199.

“Viewing the treaty in this light, we are of the opinion that the state is without power to charge the Yakimas a fee for fishing. A stated purpose of the licensing act was to provide for ‘the support of the state government and its existing public institutions.’ Laws of Washington (1937) 529, 534. The license fees prescribed are regulatory as well as revenue producing. But it is clear that their regulatory purpose could be accomplished otherwise, that the imposition of license fees is not indispensable to the effectiveness of a state conservation program. Even though this method may be both convenient and, in its general impact, fair, it acts upon the Indians as a charge for exercising the *448 very right their ancestors intended to reserve. We believe that such exaction of fees as a prerequisite to the enjoyment of fishing in the ‘usual and accustomed places’ cannot be reconciled with a fair construction of the treaty. We therefore hold the state statute invalid as applied in this case.”

Although the court’s decision contains language which purports to uphold the power of the state to impose restrictions of a regulatory nature on treaty Indians with respect to the time and manner of fishing outside the reservation, no such question was before the court for decision in the Tulee case. As pointed out in the first opinion in the Satiacum case, four judges of this court believed the language in the Tulee case to be dictum because it was not necessary to the decision.

In my opinion, the decision of the Supreme Court, on the question presented to it in the Tulee case, compels an affirmance of the trial court’s judgment. If under the Yakima treaty the state may not exact a $5 license fee from a member of the tribe for exercising his treaty right to fish at the usual and accustomed places, how can the state completely prevent, for a 10-day period, a Swinomish Indian, who has precisely the same fishing rights under the Treaty of Point Elliott, from fishing at all. If the state can impose such prohibition for a period of 10 days, it may do so for 30 or 90 days or longer. In the Tulee case, the treaty Indian would have been deprived of $5 in consideration for a whole year’s right to fish, while, in the present case, the treaty Indian is completely deprived by the state of his usual means of livelihood. Furthermore, his source of family food is entirely shut off during this period.

At this point, reference should be made to the thorough and exhaustive memorandum of the learned trial judge in which he discusses both the testimony and numerous exhibits admitted at the trial, and also many court decisions bearing on the questions involved. His summation is 48 pages in length and unfortunately cannot be quoted in full in this opinion.

In the memorandum opinion, the trial court described in detail the background and circumstances surrounding *449 the making of the Treaty of Point Elliott in 1855 between the Swinomish Tribe and Governor Isaac I. Stevens of the Territory of Washington, who represented the United States. Concerning the dependence of the Swinomish Tribe on fishing as their principal means of livelihood at the time the treaty was negotiated in 1855, the trial court said:-

“To say merely that these Indians were ‘fish eating’ would be to convey a wrong impression. The testimony clearly indicates that these people caught fish in order to exist. Fish was the main part of their diet not only in the spring and summer but it was dried and saved for winter. Their reliance upon fish is substantiated by Governor Stevens’ statement at the Walla Walla Council May 29, 1855, following the Point Elliott Treaty. . . . The Point Elliott Treaty itself supports the contention by providing in Article V for the right of ‘erecting temporary houses for the purpose of curing . . . ’ fish. There is also an interesting comment about the Lummi tribe located immediately to the north in United States v. Stotts, supra [49 F. (2d) 619]:

“ T think the court may judicially know that the Indians subsisted during this time by hunting and fishing, and the tide lands were a necessary perquisite to the enjoyment of fishing . . . ’

“As a result of the Treaty and the Executive Order, the Swinomish Indians moved to the small peninsular reservation on the south tip of Perry’s Island (Fidalgo Island). It was obviously a rocky, hilly bit of land covered by forest in most places except for portions that were tidal marsh. . . . Very little of it was then or is today conducive to profitable or successful farming. Even wild game was apparently not too plentiful on the peninsula because, according to Alex Edge, fish was all they used to live on.

“It was obvious from the nature of the peninsula and the background of the Indians who were to occupy it that their major means of subsistence on the peninsula would be to catch, eat and sell fish or to cut and sell timber. . . .”

Later, in its written opinion, the trial court again referred to respondent’s treaty rights as follows:

“As previously indicated, Governor Stevens’ Point Elliott Treaty negotiations never hinted at or made mention of a limitation upon the Indians’ right to fish at their usual and accustomed grounds. As he discussed the purposes of the *450 Treaty and desires of the Great White Father, he left the distinct impression that the Indians could fish as necessary, as they have since time immemorial. ... It will be remembered that these negotiations took place through interpreters.

“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. Regulations of fish and game were neither known nor dreamed of. The Indians had fished for salmon in the Skagit Bay area since time immemorial. The catching of salmon 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 agreement under conditions as they existed at that. time. Thus, we must interpret the Treaty and the rights of the Swinomish Indians in light of what they then knew about need for regulation, keeping in mind that both parties knew the needs and abilities of the Indians would obviously grow in the future.

“Without any doubt the Governor and the Indians signed the Treaty fully intending that the Indians should be forever allowed to catch salmon ‘at their usual and accustomed grounds’ without restriction. We must follow that intent. As stated in State v. Edwards, supra [ 188 Wash. 467 , 62 P. (2d) 1094 ],

“ ‘. . . they had a right to assume that, though the treaty limited them to a certain peninsula, their rights on that peninsula were as broad and unrestricted as they had been before. . . .

“ ‘. . . we are bound to construe the grant contained in the treaty, as fixed by the executive order, as it would naturally be understood by the Indians.’ ”

In arriving at the foregoing conclusion our Supreme Court quoted at length from Jones v. Meehan, supra [ 175 U. S. 1 , 44 L. Ed. 49 , 20 S. Ct. 1 ], as follows:

“ ‘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; *451 that the treaty is drawn up by them and in their, own language; that the Indians, on the other hand,.are.a weak 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. . . . ’

“It may be conceded that there is an ambiguity contained in the Treaty; however, that ambiguity, if there is one, should be resolved in favor of the Indians, Winters v. United States, supra [ 207 U. S. 564 , 52 L. Ed. 340 , 28 S. Ct. 207 ].

“Inasmuch as the defendant was fishing in a usual and accustomed fishing ground of the Swinomish tribe, he had a right to fish in the area where he was arrested. The treaty right provided for in Article V of the Treaty of Point Elliott is not subject to control by the State of Washington. . . . ”

The portions of the findings of fact and conclusions of law quoted below are essential to an understanding of the basis for the trial court’s judgment.

After finding that respondent was a member of the Swinomish Indian Tribe, which was a party to the Treaty of Point Elliott ( 12 Stat. 927 ), and was entitled to the protection of the treaty, the court found:

“C. Was the defendant fishing at a location protected by his rights under the Treaty of Point Elliott?

“Findings of Fact

“I. The area reserved for the Swinomish Indian Reservation was then and is a rocky, hilly bit of land covered by forest in most places except for portions that were tidal marsh. Very little of it was then or is today conducive to profitable or successful farming, and it was not then and is not now abounding in wild game. Without a salmon fishery, the reservation was incapable of producing adequate food. Fish from the immediately surrounding waters and the bounding river had always been their major, if not sole, diet.

*452 “II. At the time of negotiation of the Treaty of Point Elliott the Swinomish Indians, and thereafter the Indians living on the Swinomish Indian Reservation, fished for a livélihood, taking fish from the surrounding waters including the Skagit River as it flowed past the south end of the peninsula upon which the reservation was located. The Indians used the caught fish for their own purposes and for sale and trade to white men. The catching of salmon was necessary for the sustenance of the Indians and their families.

“III. At the time of negotiating the Treaty of Point Elliott, Governor Stevens, who represented the United States Government, made no mention of any restriction on the Indians’ right to fish, and represented that the Indians could fish as they needed, as they had since the time of their forefathers. The Indians intended that insofar as the Skagit River bounded the south end of the reservation its use was to be reserved to them for fishing as they needed for their livelihood. It was the intent of the parties to the Treaty of Point Elliott that the Indians have reserved to them the right to fish in and use the Skagit River and take such fish as were necessary for their personal and commercial use.

U

“VIII. The defendant was fishing in the area of the Skagit River as it was relocated by the Federal Government.

“D. Was the defendant fishing at a ‘usual and accustomed fishing ground’ as that phrase is used in the Treaty of Point Elliott?

“Findings of Fact

“I. The Indians originally fished with Indian traps in and near the area which is presently called the ‘jetty drift.’

“II. The Indians speared fish in the shallow gutters made by the Skagit River on the tide flats all the way from Bald Island westerly to deep water, which would cover the area of the jetty drift.

“III. The Indians fished with bait from canoes near the Hole-in-the-W all.

“IV. Article V of the Treaty of Point Elliott reserved to the Indians the right of taking fish at ‘usual and accustomed grounds and stations.’ ”

I would affirm the trial court’s judgment in this case because, while the Indians’ methods of fishing have changed *453 since 1855 when the Treaty of Point Elliott was made, the supremacy clause of the United States Constitution has not been changed. It still provides:

“ ‘This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall he made, under the authority of the United States, shall he the supreme law of the land; and the judges in every state shall he hound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.’ ” (Italics mine.)

This court is bound by all treaties made under the authority of the United States. Such treaties are by the Federal Constitution declared to be “the supreme law of the land.”

This court is also bound by the decisions of the United States Supreme Court as to the validity and interpretation of treaties.

As I read its decisions, Indian treaties were regarded by that court from 1832 to 1962 as being the supreme law of the land the same as treaties with foreign nations. See cases cited in the first Satiacum opinion.

In 1924, the rights of Japanese nationals under the then existing Japanese treaty were declared in Asakura v. Seattle, 265 U. S. 332 , 68 L. Ed. 1041 , 44 S. Ct. 515 , to be supreme over the police power of the state of Washington.

In 1942, the Tulee case was decided which construed the Yakima treaty as preventing the state of Washington from charging a member of the tribe a $5 fee for a fishing license to fish at “the usual and accustomed places.”

In 1953, the Supreme Court of Idaho upheld the treaty right of the Nez Perce Indians to hunt for game without obtaining a license from the state. State v. Arthur, 74 Idaho 251 , 261 P. (2d) 135 (1953). The state’s application for certiorari was denied, 347 U. S. 937 , 98 L. Ed. 1087 , 74 S. Ct. 627 .

In 1962, in the Kake case (quoted above), we are told that even on Indian reservations state laws may be applied to Indians unless such application would interfere with self-government or impair a right granted or reserved by federal law. No treaty was involved in that case.

*454 In the recent en banc decision of this court in State v. Bertrand, 61 Wn. (2d) 333, 378 P. (2d) 427 (1963), we had occasion to pass upon the question of whether state courts had jurisdiction to resolve internal disputes of the Quinault Tribe. In answering this question in the negative, this court quoted the following from Cohen, Handbook of Federal Indian Law (page 123), after observing that:

“It is difficult, if not impossible, to define the legal status of ‘treaty Indian tribes’ in a few words. It is sufficient for the purpose of this opinion to state:

“ ‘The whole course of judicial decision on the nature of Indian tribal powers is marked by adherence to three fundamental principles: (1) An Indian tribe possesses, in the first instance, all the powers of any sovereign state. (2) Conquest renders the tribe subject to the legislative powers of the United States and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local self-government. (3) These powers are subject to qualification by treaties and by express legislation of Congress, but, save as thus expressly qualified, full powers of internal sovereignty are vested in the Indian tribes and in their duly constituted organs of government.’ (Italics ours.)”

The majority opinion in the present case relies on the Kake case and upon the dictum in Tulee and other decisions based thereon. I do not agree that the repetition of dictum (no matter how often repeated) makes it the law of the land. I think that to be binding on this court under the supremacy clause, there must be a decision of the Supreme Court in a case involving a treaty Indian who is claiming as against the state a treaty right relating to hunting or fishing.

As of the present time, we have two cases squarely in point: (1) the Tulee case, which upheld the treaty right of the Indian to fish at usual and accustomed places without paying for a fishing license, and (2) the decision of the Idaho Supreme Court concerning a similar right to hunt game (State v. Arthur, supra) in which the state’s petition *455 for certiorari failed to receive the four votes necessary to granting a hearing by the United States Supreme Court.

In view of the present state of the controlling decisions and the supremacy clause of the United States Constitution, what is now binding upon this court? The only logical answer is the Tulee case (disregarding the dictum).

If this court is to follow Tulee , it seems to me that the judgment of the trial court must be affirmed. If the state has no power to charge a treaty Indian $5 to exercise his treaty right to fish at the usual and accustomed places, then it follows that the state may not absolutely prohibit him from exercising such right for 10 days or any other period of time. Such action could result in his being deprived of his normal supply of food for an entire year. The Treaty of Point Elliott was intended to insure respondent’s unrestricted right to fish to sustain himself and his family unless and until it shall be abrogated or modified by Congress.

The most recent decision of the United States Court of Appeals on this general subject is Maison v. Confederated Tribes of Umatilla Indian Reservation, 314 F. (2d) 169 (C.A. 9th 1963).

I recognize the very serious practical problem facing the state of Washington in the conservation of salmon both for commercial fishing and for sportsmen. But, until the Supreme Court holds in a case squarely presenting the issue that an Indian treaty is not the law of the land under the supremacy clause, the state’s only legal remedy is that suggested in the last paragraph of the first Satiacum opinion which dealt with the Puyallup Indians. It was there stated, at page 529:

“To summarize, the treaty of Medicine Creek of 1855 is the supreme law of the land and, as such, is binding upon this court, notwithstanding any statute of this state to the contrary, and its provisions will continue to be superior to the exercise of the state’s police power respecting the regulating of fishing at the places where the treaty is applicable until:

“(1) the treaty is modified or abrogated by act of congress, or

*456 “ (2) the treaty is voluntarily abandoned by the Puyallup tribe, or

“(3) the supreme court of the United States reverses or modifies our decision in this case.”

The solution of the problem lies with the Congress. Certainly this court should not disregard the Treaty of Point Elliott as the supreme law of the land in the absence of controlling precedent from the Supreme Court.

As stated above, I would affirm the trial court’s judgment.

March 13, 1964. Petition for rehearing denied.

As recently as 1956 the United States Supreme Court, in Squire v. Capoeman, 351 U. S. 1 , 100 L. Ed. 883 , 76 S. Ct. 611 , quoted with approval from Chief Justice Marshall’s opinion in Worcester v. Georgia, 31 U. S. 350 ( 6 Peters 515 ) (1832), the rule that language used in Indian treaties should never be interpreted to their prejudice.

In Williams v. Lee, 358 U. S. 217 , 3 L. Ed. (2d) 251, 79 S. Ct. 269 (1959), the Supreme Court, in referring to the authority of Indian tribes over their reservations said:

“. . . The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone Wolf v. Hitchcock, 187 U. S. 553, 564-566 .”