Petition — Arnett v. Five Gill Nets

=== = —————

In the Supreme Court of the

United States

) Octoser Term, 1975

No. 5-527

G. Raymonpd Arnett, as Director of the Department

of Fish and Game of the State of California,

Petitioner and Plaintiff,

vs.

5 Guu Nets, etc.,

Defendants,

Raymonp Martz,

Respondent and Intervenor.

Petition for a Writ of Certiorari to

the California Court of Appeal,

First District, Division Three

EvELLE J, YOUNGER

Attorney General of the

State of California

Cart BoronKay

Assistant Attorney General

RopericKk WALSTON

Deputy Attorney General

6000 State Building

San Francisco, CA 94102

Tel: (415) 557-3920

Attorneys for Petitioner

and Plaintiff

SORG PRINTING COMPANY OF CALIFORNIA, 346 FIRST STREET, SAN FRANCISCO 94105

SUBJECT INDEX

Page

RN i ll iia

EFTTA EY Uren reoe SOON CORT SRN TE ONE ACCRA 2

I eI: sis anasisnbiiadatammeeaunsanaidinsditis 2

EE I SINE nsivievichisncshinsccnsctsipiiteansieinessesitiganitiemiidsiiinsins 3

SIR GET III III sssccoscsennehcceshappbhiebaanileeianindintil 3

IIIT ‘ncntiniscniitctndtiaidinsitincidemadinasel i sisnhistiaiasadiuindtashiddeniosinniniiies 6

I. Public Law 280 Requires Indians on the Klamath

River Reservation to Comply with California

Law in Fishing on the Reservation ........................ 12

A. Compensation for Loss of Rights ................ 17

B. Granting of Fishing Rights -............2......... 18

II. Indians on the Klamath River Reservation Are

Subject to California’s Fishing Laws when Fish-

ing on Surplus Reservation Lands Owned by

TIN ss iscccicisniderinctiieiiasbaneiniaitnshihiaitictenianginepsidaiianictionns 25

Ill. California Has the Right to Determine the Nature

and Extent of Indian Subsistence Fishing, and

Has Properly Done So in this Case ........................ 32

IV. California Has the Right to Regulate Indian

Fishing For Conservation Purposes, at Least

Where Such Fishing Is Not Regulated by the

United States or the Tribe and Where California

Grants Preferential Fishing Privileges to the In-

SEIIITEIE cicchinisicinicasaseessinininihinseclahaincadneaniabiadinutnasiaaniininiiannioas 37

(SPR ire orl oltre ne as COND MPEP rs Se BTL aR EN MM Der RIE 43

TABLES OF AUTHORITIES CITED

CASES Pages

American Railway Express Co. v. Levee, 263 U.S. 19

RANGE STE RD RON a RUS Aa ID er a OO nee RR NAPE 2

Antoine v. State of Washingon, 43 U.S.L.Wk, 4256,

UE NI sitesi al aceite aiid ceacieallide aed 21, 28, 30

Atlantic Transport Co. v. Rosenberg Bros. & Co., 34

ef § FF. ft eerie crunenes 35

Beverly Oil Co. v. City of Los Angeles, 40 Cal. 2d 522

RE AT ik URES OASYS PN PA) eee OS AA OER 31

Board of County Comm'rs vy. Seber, 318 U.S. 705, 716

UIT concitdisiniclnescedich eb cecieaatepe clieibdahideaaiaiaiadddchandiehaddapimmniee 10

Buchser v. Buchser, 231 U.S. 157 (1918) ~....00220... 30

DeCoteau v. District County Ct., -—- U.S. —— 94

i Ne CEE dbcinnsckduitslsthensinnecheibiiinlareiaiial 19, 26, 27, 31

Donahue v. Justice Court, 15 Cal. App. 3d 557, 93

sts I IND sleidc cine aieticciiealasedidiceedes 13, 14

Elser v. Gill Net No. One, 246 Cal. App. 2d 30, 33-34,

54 Cal. Rptr. 568, 571-572 (1966) 2.2... eeeeceeeee 13

Hopkins v. United States, 414 F. 2d 464, 467 (9th Cir.

SSPUTTEN nidssivsecchcscnthbieaieiiahdetdiiiandidciteapitiansimesitbilendlansadataiiestaiaitinies 10

Iivnes v. Grimes Packing Co. 337 U.S. 86, 103 (1949)

SDA Oe He SOR ak eee AE aN or Mea 17, 18, 19, 20, 25

In re Marincovich, 48 Cal. App. 474, 481 192 Pac. 156,

IR REE Ro nv Hae Co ON I 39

In re Plumer, 9 F. Supp. 923 (S.D. Cal. 1935) -........... 35

Kennedy v. Becker, 241 U.S. 556 (1916) _000 26, 27

Kennerly v. District Court, 440 U.S. 423, 426-427

1, RPS apne sr ee Or eee RE eNOS Te eee 28

Mattz v. Arnett, 412 U.S. 481 (1973) ....0.0.000.... 2, 3, 7, 27

TABLES OF AUTHORITIES CITED lii

CasEs Pages

McClanahan vy. Arizona State Tax Comm’n, 411 U.S.

I ic dabccceiitasacaieialiclaatinnaieaiae 8

Menominee Tribe v. United States, 391 U.S. 404, 407

a aaa sicemsiablineintionied 10, 17

Mescalero Apache Tribe v. Jones 411 U.S. 145, 148

IIIT “i ‘ilieshe ican desea andi aainenendaidentiapeiabdiadadiianiiiotansien 8, 28

Metlakatla Indian Community v. Eee, 369 U.S. 45

ESTE Ar OE eioseall 8, 18, 19, 22, 23, 24

Miller v. United States, 294 U.S. 435, 439 (1935) -....... 19

Northern Pac. R’y Co. v. Wismer, 246 U.S. 283, 287-

Se a

Organized Village of Kake v. Egan, 368 U.S. 60, 75

ITI ssiciassediaiitdnicalioictil 8, 18, 19, 22, 28

People v. Monterey Fish Products Co., 195 Cal. 548,

556, 557, 234 Pac. 398, 401-402 (1925) ee

Quechan Tribe v. Rowe, 350 F. Supp. 106 (S.D. Cal.

SEED aidclidsietlsalhcesahianandisakansioahaiita “8 13, 14

Seymour v. Superintendent, 368 W.S. 351 (1962) ........ 27

Sioux Tribe v. United States, 316 U.S. 317 (1942)..17, 24, 25

State ex. rel. Nepstad v. Danielson, 149 Mont. 438, 440,

427 P.2d 689, 691 (1967) 14

Udall v. Tallman, 380 U.S. 1 (1964) 2002... 13

United States v. Forty-Eight Pounds of Rising Star

Tea, 35 Fed. 403 (N.D. Cal. 1888), affd. 38 Fed. 400

ene 11

United States v. Seminole Nation, 299 U.S. 417, 428

ERTS EE ES EE meena ee ae 19

United States v. Walker River Irr. Dist., 104 F.2d 334,

I a I i eieciomaslasninlinni 20

iv TaBLes OF AvTHORITIES CITED

CasEs Pages

White v. State of California, 21 Cal. App. 3d 738, 742-

43, 99 Cal. Rptr. 56, GD (1971) ee 35

Williams v. Lee, 358 USS. (19GB) nnn nneececeencceceeeee es 8

Unitep States Statutes

TN Ta 8

BD TERR. SP CIID wiccssncsttssieccmensiarientiticnapiauaameathaanaane 10

BS TRE, BUG CG aD cenissccesscinicsiccinisemesnmntatngsite asian 19

SE TUR GE COG. cecnsccensecistveserecnnenennnecsabianiaaianaee 19

oe SD Bi | Pn 19

fe Ft , Pee eS w-, 20, 29, 30

i 8) RE ce piciteitiiiiaaitiabine 3, 12

TB TORE, EER COD eccccccaneecssersseencisiocieacieaaaaannes 26

Environmental Quality Improvement Act, 84 Stat. 114

(1970), 42 U.S.C. § 4371(b)(2) (1970 ed.) oe. 22

General Allotment Act of 1877, 24 Stat. 388 0.000... 9,10

Publie Law 280, 18 U.S.C. $1162, 28 U.S.C. § 1360

(TCDD .uevseveccsssistinsituitiiiitacihiiaietis taddaiaidinmaaaaa in passim

CONGRESSIONAL Brits

H.R. 161, 52d Cong., Ist Sess. (1892) 2. 25, 28

H.R. 459, 82d Cong., 2d Sess. (1951) ............................ 14

H.R. 1148, 47th Cong., Ist Sess. (1882) 00. 29

H.R. 3235, 82d Cong., Ist Sess. (1951) oe 14

H.R. 3624, 82d Cong., Ist Sess. (1951) oe. 14

H.R. 5476, 82d Cong., Ist Sess. (1951) oe 14

CONGRESSIONAL DEBATES

23 Cong. Ree. 1598-99, 3918-19, 52d Cong. Ist Sess.

(1892)

99 Cong. Ree, 9962, 83d Cong., Ist Sess (1953) .0000....... 14

TaBLes oF AuTHORITIES CITED Vv

Catirornia CopEs Pages

14 Cal. Admin. Code

LESS LLL A 41

Calif. Civ. Code

EEE

Calif. Evidence Code

§ 452 aha tiaras 35

Calif. Fish & Game Code

§ 1601 a. ea

§ 1602 . 41

§ 7155 38

§ 8602 ...... ; _ 3

EE SEED A 3, 36

§ 8664 . DES SE 3, 36

EE SASS 3, 36

§ 11014 sites a

EE LESS 36

§ 11037 " a a 36

Calif. Pen. Code

§ 602 . 31

Cal. Pub. Res. Code

$§ 4511-4628 ... laine ibe 41

Calif. Wat. Code

$§ 20.60, 21.50 41

Books

Cohen, Handbook of Indian Law (U.S. Govt. Printing

Off. 1942), 67 18, 25, 26

1 Kappler, Indian Affairs: Laws & Treaties 815........ 3, 27

U.S. Department of Interior, Federal Indian Law

(U.S. Govt. Printing Off., 1958) 26

In the Supreme Court of the

United States

Octrosper Term, 1975

No.

G. Raymonp Arnett, as Diréctor of the Department

of Fish and Game of the State of California,

Petitioner and Plaintiff,

vs.

5 Gu Nets, ete.,

Defendants,

Raymonp Martz,

Respondent and Intervenor.

Petition for a Writ of Certiorari to

the California Court of Appeal,

First District, Division Three

The decision of the Court of Appeal, its order denying

a petition for rehearing and the order of the State Supreme

Court denying a petition for hearing are attached hereto

as Appendix 1.

2

JURISDICTION

The decision of the Court of Appeal was rendered on

May 27, 1975. Its order denying a petition for rehearing was

rendered on June 26, 1975. The State Supreme Court denied

a petition for hearing on July 23, 1975. A petition for a

writ of certiorari is due on or before October 21, 1975.

American Railway Express Co. v. Levee, 263 U.S. 19 (1923).

This Court has jurisdiction pursuant to 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

This case, on remand from the decision of this Court in

Mattz v. Arnett, 412 U.S. 481 (1973), presents four signifi-

cant questions of federal Indian law, each of which was

decided by a State court. This Court thus has discretion to

grant a writ of certiorari under Rule 19(1) (a).

The questions presented for review are:

(1) Does Publie Law 280, which exempts Indian fishing

rights from State law if such rights are based on a federal

“treaty, agreement, or statute,” contain a similar exemp-

tion for rights assertedly based on executive orders?

(2) Does a State have the right te regulate Indian fishing

on surplus reservation lands which are owned by non-In-

dians, which are not held in trust by the United States for

the Indians’ use and which were not traditionally used for

tribal purposes?

(3) Assuming that Indians have the right to fish on a

reservation for “subsistence” purposes, does the State have

a right to define the nature of such “subsistence” fishing,

and thereby prohibit the Indians from using gill nets for

that purpose?

(4) Does a State have a right to regulate Indian fishing

on a reservation when such regulation is reasonably related

to the conservation of a fishery, at least when such fishing is

not otherwise regulated by iederal or triba}authorities and

\

when the State gives preferential fishing privileges to the

Indians?

FEDERAL LAWS INVOLVED

This case involves an interpretation of (1) Public Law

280, 67 Stat. 588 (1953), 18 U.S.C. § 1162, 28 U.S.C. § 1360

(1970), set forth in Appendix 2, (2) the presidential

executive order extending the Hoopa Valley Indian Reser-

vation, found in 1 Kappler, Indian Affairs: Laws ¢ Treaties

815, set forth in Appendix 3, and (3) the Act of June 17,

1892, 27 Stat. 52, set forth in Appendix 4.

STATEMENT OF-THE CASE

This case is on remand from the decision of the U. 8S.

Supreme Court in Mattz v. Arnett, 412 U.S. 481 (1973). In

that decision, the Court ruled that the iower portion of the

Klamath River in northern California constitutes an Indian

reservation. The Court remanded the case for a determi-

nation of California’s right to regulate Indian fishing on the

reservation. 412 U.S. at 485.

In 1969, wardens of the California Department of Fish

and Game seized five gill nets owned by the intervenor, a

Yurok Indian, CT 134-135.' At the time of the seizure, the

nets were located adjacent to the Klamath River, within the

confines of an Indian reservation. CT i135. The lands on

which the nets were seized were, and are, owned by a private

logging company. /bid. There is no dispute that the nets

were being used in violation of California law. Calif. Fish

& Game Code §§ 8602, 8603, 8664, 11003. The Department

accordingly brought an action in a State court to forfeit the

nets. Id, at § 8630.

In the forfeiture proceeding, the trial court ruled that

the area where the nets were seized was no longer an Indian

1. “CT” constitutes a reference to the Clerk’s Transcript, and

“RT” a reference to the Reporter’s Transcript.

4

reservation, and did not reach the question of whether—

assuming that the area was a reservation—California has

jurisdiction to regulate Indian fishing thereon. The decision

was affirmed by the State Court of Appeal. 20 Cal. App. 3d

729, 97 Cal. Rptr. 894 (1971). The State Supreme Court

declined to hear the matter. 20 Cal. App. 3d 735, 97 Cal.

Rptr. 898 (1971). The U. S. Supreme Court, after granting

certiorari, reversed the decision of the Court of Appeal.

Matt: v. Arnett, supra. On remand, the trial court ruled that

California was without jurisdiction to regulate Indian fish-

ing on the reservation. CT 123, 134. Its decision was again

affirmed by the Court of Appeal. Appendix 1. The State

Supreme Court again declined to hear the matter. Ibid.

The historical background of the area where the nets

were seized is set forth in detail in Matte v. Arnett, supra,

United States v. Forty-Eight Pounds of Rising Star Tea,

35 Fed. 403 (N.D. Cal. 1888), aff’d 38 Fed. 400 (CCND Cal.

1889), and Elser v. Gill Net No. One, 246 Cal. App. 2d 30,

33-34, 54 Cal. Rptr. 568, 571-572 (1966). Briefly, the Presi-

dent, pursuant to an 1853 Congressional act authorizing the

establishment of military reservations in California, issued

an executive order in 1855 which established the Klamath

River Reservation for “Indian purposes,” encompassing an

area one mile wide on each side of the Klamath River from

its mouth to a point approximately twenty miles upstream.

1 Kappler, Indian Affairs: Laws & Treaties (hereinafter

“Kappler”] 815. After an 1861 flood, the reservation was

partially abandoned. In 1864, Congress passed an act author-

izing the President to establish a total of four Indian reser-

vations in California, and directing the termination of any

existing reservations not retained under the act. 13 Stat.

39 (1864). Pursuant to this authorization, the President

established four Indian reservations in California between

1870 and 1876, 481 U.S. at 493; 1 Kappler 815, 819, 828,

5

830-831. The last of these reservations, the Hoopa Valley

Indian Reservation, consists of a twelve-mile square area

located approximately fifty miles upstream from the mouth

of the Klamath River. Lacking the authority to create any

further reservations under the 1864 act, the President is-

sued an executive order in 1891 which extended the Hoopa

Valiey Indian Reservation for “Indian purposes,” an ex-

tension which included an area one mile wide on each

side of the Klamath River from its mouth to the Hoopa

Valley Indian Reservation. 1 Kappler 815. This extension

thus included what had foi merly been known as the Klamath

River Reservation, and also a‘ thirty mile strip between

these reservations known as the Connecting Strip.’

Prior to 1891, most of the lands of the Klamath River

Reservation were privately occupied by non-Indian settlers,

and were not used for traditional tribal purposes. H.R. Rep.

No. 161, 52d Cong., Ist Sess. (1892) ; 23 Cong. Ree. 1598-99,

3918-19, 52d Cong., Ist Sess. (1892). Congress passed a

statute in 1892 allowing these settlers to acquire title to

their property, allowing other settlers to claim other reser-

vation lands which were surplus to the Indians’ needs and

allowing the Indians to reserve other lands for trust allot-

ments, Indian communities and other tribal purposes. 27

Stat. 52 (1892). The reservation status of the area survived

the 1892 act, however, and remains in existence today. Mattz

v. Arnett, supra.

At least by the 1930’s, California regulated commercial

fishing, but not subsistence fishing, by Indians on the Kla-

2. For purposes of clarity, the reservation encompassing the

12-mile square area located approximately 50 miles upstream will

be referred to as the “Hoopa Valley Reservation proper,” the reser-

vation located on the lower 20 miles of the river will be referred to

as the “Klamath River Reservation,” and the reservation locatec

between these reservations will be referred to as the “Connecting

Strip.”

6

math River Reservation. Many Indians began to catch vast

quantities of fish ostensibly for subsistence purposes, but

actually for sale on the black market. California’s Exh. 6(1).

California thereupon began to regulate subsistence as well

as commercial fishing by the Indians, /bid.

California’s regulatory program was modified and codi-

fied by the enactment of section 429.8, now section 7155, of

the California Fish and Game Code in 1951. See Appendix

5. The section authorizes Indians on the Klamath River

Reservation to fish “for subsistence purposes.” The section

also frees the Indians on the reservation of most restric-

tions imposed on the white man. For instance, the Indians

are free of seasonal limitations and (except for certain

critical species) daily limitations. However, the section,

although authorizing the Indians to fish for subsistence pur-

poses, does not permit the use of gill nets for such purposes.’

Indian fishing on the Klamath River Reservation is not

regulated by the United States, the Yurok tribe or any

other tribe. Thus, the decision of the lower court frees

Indians on the reservation of any regulatory control what-

soever, and a number of members of the tribe have resumed

the wasteful and commercial practices which led to Cali-

fornia’s regulation of the fishery in the first place. See

Appendix 6.

ARGUMENT

Before proceeding with our legal argument, we wish to

emphasize that California’s regulation of Indian fishing on

the Klamath River Reservation is, in our view, not larmful

to the Indians’ interests, and may even be helpful to their

3. The Court of Appeal erroneously stated that, under section

7155, “the only method of taking fish that has been permitted is

by angling.” Appendix 1, p. +. However, section 7155(b) expressly

authorizes the taking of fish by hand dip nets, as well as by

angling.

7

interests. California’s fishing laws do not discriminate

against Indians fishing on that portion of the river, but

instead—by giving them preferential fishing privileges

under section 7155 of the State’s Fish and Game Code—

free them of most restrictions imposed on the white man.

Our concern in this case, however, is that the fishery will

suffer from the removal of any controls over Indian access

to the fishery, which is the result of the decision of the

Court of Appeal. Our concern is borne out by events occur-

ring subsequent to that decision. Presently, a compara-

tively small number of Indians on the Klamath River Res-

ervation are now taking vastly greater quantities of fish

than they need for subsistence purposes, and are wasting

or selling the excess quantities of fish taken. See n. 24,

infra. The Indian community will suffer, in the long run, if

these wasteful and excessive practices result in the degra-

dation or destruction of the fishery. Hence, California’s laws

are designed to protect the interests of both the Indians and

the fishery, to protect the needs of both her citizens and

her resources.

But we do not ask the Court to grant our petition solely

to protect the fishery from the mounting threat posed by

the lower court’s decision. Rather, we ask the Court to grant

our petition primarily to resolve the lack of judicial au-

thority on the question of whether, and under what circum-

stances, a state may apply its fishing laws to Indians on a

reservation, particularly under the facts of this case. The

Court has, on several recent occasions, clarified the law ap-

plicable in determining whether an area is an Indian reser-

vation. Seymour v. Superintendent, 368 U.S, 351 (1962) ;

Mattz v. Arnett, supra; DeCoteau v. District County Ct.,

cena U.S. ......... 92 S.Ct. 1082 (1975). But the Court has yet

to clarify the laws applicable in determining the effect of a

8

State’s fishing laws on such a reservation. Thus, this case

presents issues which have significance in States other than

California, and deserves the attention of this Court.

Whether, and under what circumstances, a State has

authority to apply its fishing laws on Indian reservations

depends on federal law. As this Court has observed on

several recent occasions, “even on reservations state law

may be applied to Indians unless such application would

interfere with tribal self-government or impair a right

granted or reserved hy federal law.” Organized Village of

Kake v. Egan, 368 U.S. 60, 75 (1962); Mescalero Apache

Tribe v. Jones, 411 U.S. 145, 148 (1973); Williams v. Lee,

358 U.S. 217 (1959).4 In McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164 (1973), the Court noted that the

principle of tribal sovereignty should be considered in in-

terpreting federal law. As we shall see, however, no question

of tribal sovereignty or self-government is presented in

4. In Organized Village of Kake v. Egan, supra, and Met-

lakatla Indian Community v. Egan, 369 U.S. 45 (1962), the Court

considered the Indians’ fishing rights in light of the Alaska State-

hood Act, which gives the United States “absolute jurisdiction

and control” over Indian property, including reservations. 72

Stat. 339 (1958). The Court held that this act, in itself, does not

authorize the United States to erclusively regulate fishing by

Alaska’s Indian tribes, and that Alaska may also regulate such

fishing except to the extent inconsistent with other federal laws

or with tribal self-government. Here, the 1850 act admitting Cali-

fornia to statehood did not even purport to give the United States

“absolute jurisdiction and control” over California’s Indian tribes,

but merely prevented California from interfering with the “pri-

mary disposal of the publie lands within its limits” by the United

States. 9 Stat. 452 (1850). Moreover, since the Court in the Kake

Village case held that the Alaska Statehood Act only protected

Indian rights existing at the time of the act’s passage, 369 U.S.

at 64-65, California's right to regulate the conduct of Indians

would apparently be greater where, as here, the reservation was

established after the passage of the act admitting California to

statehood. Thus, the California statehood act provides an addi-

tional basis for California’s right to regulate Indian fishing in this

case.

9

this case, for the Yurok tribe does not regulate, or seek to

regulate, fishing by its own members on the reservation.

Applying the foregoing principles here, we contend that

a federal law, Public Law 280, expressly authorizes Cali-

fornia to regulate Indian fishing on all reservations in

California. However, even if this argument is not accepted,

and even if the Indians on the Klamath River Reservation

are held to have a fishing right, an additional inquiry must

be made into the nature and extent of the fishing right

under federal law. The fact that the Indians have a general

right to take fish does not mean that the right is absolute,

that the right is not subject to State limitations under a

particular factual setting.

The lower court, however, apparently did not so view the

case. The court construed the phrase “Indian purposes,”

as it appears in the executive order establishing the reser-

vation, as creating a fishing right, and concluded that “State

qualifications of those traditional rights was [sic] pre-

cluded by the Supremacy Clause.” Appendix 1, pp. 8-9.

Initially, we fail to see how the phrase “Indian purposes”

ean be held to create a fishing right, for the phrase is a

redundancy. Every Indian reservation is obviously estab-

lished for Indian purposes, and the rights of Indians on the

reservation should not hinge on whether that phrase ap-

pears in the order establishing the reservation, Moreover,

it is not even clear that the Klamath River Reservation was

established for the purpose of enabling the Indians to fish.®

5. The reservation, as originally established by the 1855 execu-

tive order, was situated along a river which “abounded in salmon

and other fish,” 412 U.S. at 487, and it is fair to conclude that

the executive order contemplated that the Indians would take fish

from the river. However, the 1891 executive order re-establishing

the reservation was issued contemporaneously with the General

Allotment Act of 1877, 24 Stat. 388. The purpose of the latter

act, which formed the basic Indian law for nearly a half century,

10

More importantly, however, the lower court failed to make

the additional inquiry—assuming that the executive order

created fishing rights for the Indians—of whether federal

law permits California to place limited restrictions on the

exercise of those rights. Such an inquiry is required under

federal law. This Court recently noted, in holding that the

reference to “Indian purposes” in an 1854 treaty created

Indian fishing rights which survived a 1954 act terminating

the reservation, that:

“What the precise nature and extent of those hunting

and fishing rights were we need not at this time deter-

mine.” Menominee Tribe v. United States, 391 U.S.

404, 407 (1968).

In this case, we contend that, if the Indians have fishing

rights which are not affected by Public Law 280, the rights

are subject to three limitations which the State may impose.

was to end the tribes’ nomadic activities by encouraging them to

own lands for agricultural purposes, and to assimilate the tribes

into white society. Board of County Comm'rs v. Seber, 318 US.

705, 716 (1943); Hopkins v. United States, 414 F.2d 464, 467

(9th Cir. 1969). Thus, the purpose of the 1891 executive order,

viewed historically, was probably to encourage the Indians to

take up agrarian pursuits on the fertile lands adjacent to the

river, not to encourage them to fish in violation of State laws

applicable to others.

The lower court, apparently to prevent the “purposes” of the

reservation from being construed in light of the purposes of the

General Allotment Act of 1877, held that the reservation was

established by the 1855 executive order, not the 1891 executive

order. Appendix 1, pp. 3, 5. However, the court failed to note that

the reservation, although originally established by the 1855 order,

was discontinued prior to its re-establishment by the 1891 order.

The 1864 congressional act, pursuant to which the 1891 order was

issued, authorized the President to establish a total of four Indian

reservations in California, and directed that existing reservations

not retained under the act were to be discontinued. 13 Stat. 39

(1864). Pursuant to that act, the President established four reser-

vations in California, the last being the Hoopa Valley Reservation

proper, established in 1876. 481 U.S. at 493-94; 1 Kappler 815,

819, 828, 830-31. Since the President thus created four other

11

First, California may regulate the exercise of the rights

on surplus reservation lands which are owned by non-

Indians, which are not held in trust by the United States

for the Indians’ use and which were not traditionally used

for tribal purposes. Second, assuming that the Indians have

a right to fish for “subsistence” purposes, California may

define the nature of “subsistence” fishing, and thereby pro-

hibit the Indians from using gill nets for that purpose.

Third, California may regulate Indian fishing to the extent

that such is reasonably related to the conservation of the

fishery, particularly—as here—where such fishing is not

regulated by federal or tribal authorities and where Cali-

fornia gives preferential fishing privileges to the Indians.

reservations under the 1864 act, a federal district court ruled in

the 1880’s that the Klamath River Reservation no longer existed,

and the decision was affirmed on appeal. United States v. Forty-

Eight Pounds of Rising Star Tea, 35 Fed. 403 (N.D. Cal. 1888),

aff'd 38 Fed. 400 (CCND Cal. 1889) The decision prompted the

President to issue the 1891 executive order, extending the Hoopa

Valley Reservation proper to include the former Klamath River

Reservation.

If the Klamath River Reservation were not terminated by the

1864 act, or at least by the establishment of the fourth reserva-

tion thereunder in 1876, the President would have lacked authority

to establish the fourth reservation, 7.e., the Hoopa Valley Reserva-

tion proper, since that would have been the fifth reservation estab-

lished by presidential order. Moreover, if he lacked authority to

establish the Hoopa Valley Reservation proper, he lacked authority

to issue the 1891 order extending that reservation. Thus, either the

Klamath River Reservation was terminated prior to 1891, or the

Hoopa Valley Reservation proper and its extension were not

legally established as a reservation. The intervenor, obviously

aware of this dilemma, properly concedes that the Klamath River

Reservation was terminated by 1876, “at the lates...” 112 U.S. at

493. The Court of Appeal, in failing to consider whether the

reservation was terminated prior to 1891, was obviously unaware

of the implications of the dilemma.

12

1. Public Law 280 Requires Indians on the Klamath River Reser-

vation to Comply with California Law in Fishince on the Reser-

vation.

In 1953, Congress passed a statute, Publie Law 280, which

authorizes several States, including California, to assume

full civil and criminal jurisdiction over Indian reservations,

and over the conduct of Indians on such reservations. 67

Stat. 588 (1953), 18 U.S.C. § 1162, 28 U.S.C. § 1360 (1970).

Appendix 2. However, the statute excepts from State

law any Indian fishing rights “afforded” under a “Federal

treaty, agreement, or statute.” bid. On its face, the statute

does not provide an exception for claimed fishing rights

based on a presidential executive order, since such an order

does not fall within the category of a treaty, agreement or

statute. Hence, even if we assume that the executive orders

of 1855 and 1891, in establishing the Klamath River Reser-

vation, authorized Indians to fish in violation of State law,

Public Law 280 ended that authorization. However, the

Court of Appeal reached the opposite result by concluding

that the Indians’ asserted fishing rights were actually based

on a statute, 7.e., the 1853 congressional act which authorized

the President to issue the 1855 executive order. Appendix

1, pp. 5-6.

Initially, we note that the court’s conclusion is inecon-

sistent with a ruling rendered by the Commissioner of

Indian Affairs in 1954, shortly after the passage of Public

Law 280, to the effect that “there does not appear to be

any federal statute which affords these Indians [of the

reservations on the Klamath River] of any such right,

privilege or immunity,” such as to exempt them from Calli-

fornia’s fishing laws under Publie Law 280. California’s

13

Exh. 6(f).* Certainly this ruling, as a contemporaneous ad-

ministrative interpretation of a statute, is entitled to

weight. Udall v. Talman, 380 U.S. 1 (1964); 2A Sutherland,

Statutory Construction (4th ed.) 238, 251-252, 255, 261-262."

However, we do not ask the Court to grant our petition

merely to resolve differences between judicial and admin-

istrative interpretations of law. Rather, we ask such relief

because the lower court’s conclusion ignores the limitations

which Congress—by making reference to “treaties, agree-

ments, and statutes”—carefully inserted in Public Law

280, and also ignores the clear statutory and legislative

history of that statute. Moreover, since many other States

have received jurisdiction over Indian reservations under

Public Law 280, the court’s decision concerns issues which

are not limited to California.

The statutory and legislative history of Public Law 280

convincingly reveals a congressional intent not to provide

an exception for asserted Indian fishing rights based on an

executive order, whether or not the order was issued pur-

6. California suspended its enforcement program with respect

to Indian fishing pending the Commissioner’s ruling, and resumed

its enforcement program after the ruling was rendered. The ruling

assumed a wide significance in Congress, and was distributed to

California’s senators, Knowland and Kuchel, and to California’s

Congressman (later Senator) Engle, at their request. California’s

Exhs. 6(c), 6(f), 6(h).

7. The lower court’s decision is also inconsistent with that of

another California appellate court in Elser v. Gill Net No. One,

246 Cal. App.2d 30, 54 Cal. Rptr. 568 (1966). There, the court

considered the Indians’ fishing rights on the Connecting Strip,

which was established by the same 1891 executive order which

established the Klamath River Reservation. The Elser court con-

cluded that there are “no federal statutes dealing with Indian

fishing and hunting rights” in California within the meaning of

Publie Law 280. 246 Cal. App.2d at 37, 54 Cal. Rptr. at 574.

Moreover, the court’s decision varies from the theory espoused

by the courts in Donahue v. Justice Court, 15 Cal. App.3d 557,

93 Cal. Rptr. 310 (1971), and Quechan Tribe v. Rowe, 350 F.

14

suant to a congressional act. H.R. 1063, the bill which be-

came Public Law 280, originally provided an exception for

Indian fishing rights based on a federal “law, treaty or

agreement.” 99 Cong. Rec, 9962, 83d Cong., Ist Sess. (1953). .

(Emphasis added.)* But the word “law” was changed to

“statute” prior to the bill’s passage. In its original form,

the bill clearly provided an exception for executive orders.

In its amended form, the bill clearly removed this excep-

tion. As a result of the amendment, it is clear that Con-

gress, which knows how to provide for Indian rights based

on executive orders,’ did not intend to provide an excep-

tion for executive orders in Publie Law 280.

The amendment of H.R. 1063 was made by the House

Committee on Interior and Insular Affairs, at the request

of the U.S. Department of the Interior. California’s Exh.

6(k). In recommending the amendment, the Department

advised the committee that:

Supp. 106 (S.D. Cal. 1972). In those eases, the courts construed

a federal anti-trespass statute, 18 U.S.C. § 1165, as a statute within

the meaning of Publie Law 280. We pointed out in the briefs below

that this statute was solely intended to prevent trespass by non-

Indian sportsmen on reservation lands, not to prevent the State

from exercising its police power on such lands. Accord, State ex

rel. Nepstad v. Danielson, 149 Mont. 438, 440, 427 P.2d 689, 691

(1967). The Court of Appeal in this ease properly failed to repeat

the theory of the Donahue and Quechan Tribe eases.

8. In fact, other bills had been previously considered, and re-

jected, by Congress which would have provided an exception for

fishing rights based on a federal “law” or “custom.” H.R. 3624,

82d Cong., Ist Sess. (1951); H.R. 5476, 82d Cong., Kt Sess.

(1951); H.R. 3235, 82d Cong., Ist Sess. (1951); H.R. 459, 82d

Cong., 2d Sess. (1951); S. 332, 83d Cong., Ist Sess. (1953). See

California's Exh. 8.

9. For instance, Congress passed a law in 1946 which provides

jurisdiction of the Court of Claims over Indian claims “arising

under the Constitution, laws or treaties of the United States. or

Executive orders of the President .. . .” 28 U.S.C. § 1505.

15

“Finally, the subsection relating to the protection of

trust or restricted Indian property and of Indian fish-

ing and hunting rights has been revised in an effort

to make its provisions as precise and certain as pos-

sible.” Jd, at p. 3. (Emphasis added.)

Since the committee accepted the recommended change, it

obviously accepted the reasons set forth in support of the

change. Moreover, the Assistant Commissioner of Indian

Affairs subsequently described the purpose of the amend-

ment as follows:

“By recommending that the words ‘federal law, treaty

or agreement’ be changed~to ‘Federal treaty, agree-

ment or statute,’ it was intended to make clear that

the rights, privileges or immunities to be preserved

or protected were those which the Indians expressly

reserved in treaties or agreements with the United

States or which were expressly granted to Indians in

a Federal statute.” California’s Exh. 6(g), pp. 1-2.

(Emphasis added.)

Since Congress thus wanted only to exempt Indian fishing

rights which were “precise and certain,” and “expressly”

based on a treaty, agreement or statute, it is apparent

that Congress did not intend to exempt claimed rights based

on executive orders, particularly rights that were not

clearly established by such orders.

The lower court, faced with this clear expression of the

congressional intent, simply chose to ignore it. The court

stated that “Public Law 280 does not state that fishing

rights derived from treaty, agreement, or statute will only

be protected if the right was expressly granted.” Appendix

1, p. 8. (Emphasis on “state” added.) Thus, the court

ignored the legislative history on grounds that such his-

tory does not appear in the statute itself, on its face. No

16

citation is necessary, we believe, that the legislative history

of a statute is highly significant in interpreting a statute,

even though such does not appear in the statute. By con-

cluding otherwise, the lower court has simply ignored the

law,

Perhaps the lower court's failure to follow the law ap-

pears more clearly from its statement that “no reason

appears why the manner in which the right was granted

would make it more or less worthy of protection....”

Appendix 1, p. 8. By thus disregarding the “manner” in

which an asserted fishing right is created, the court ignored

the fact that the exceptions contained in Public Law 280—

which are limited to federal treaties, agreements and

statutes—are directly tied to the manner in which the as-

serted right is created. Thus, by giving equal effect to

claimed rights without regard to the manner of their

creation, the court has simply read out of the statute the

limitations which Congress—by the amendment process—

painstakingly inserted. If the court's decision is not re-

versed, the limitations contained in that statute will have

no significance whatsoever. It is difficult to imagine a

clearer example of judicial legislation. If these limitations

are to be removed from the statute, such is the task of Con-

gress, not the courts.

In fact, we offered an explanation as to why Congress

chose not to provide an exception for executive orders, but

the lower court simply ignored our explanation in its de-

cision. In our view, Congress, by refusing to provide such

an exception, followed the distinction which has tradition-

ally been drawn between executive orders and other federal

laws, in defining the nature and extent of Indian rights.

This distinction has particularly been drawn in determining

17

(1) whether Indians have a right to compensation for the

loss of their rights, and (2) whether a fishing right was

granted to Indians in the first place.

A. Compensation for Loss of Rights.

In Sioux Tribe v. United States, 316 U.S. 317 (1942), the

Court noted:

“The rights and interests which the Indians enjoyed

in executive order reservations were different from

and less than their rights based on treaty or statute

reservations.” Jd. at 27.

Accordingly, the Court held that the federal government

is liable for the taking of Indian rights based on treaties

and statutes,’® but not executive orders. Accord, Hynes v.

Grimes Packing Co., 337 U.S. 86, 103 (1949). Thus, Con-

gress, in not exempting executive orders from the effect of

Public Law 280, perhaps intended to exempt only those

rights which, in the event of their loss, would require the

payment of compensation. This explanation finds sup-

port in the decision in Menominee Tribe v. United States,

391 U.S. 404 (1968). There, the Court stated that Con-

gress intended to protect treaty-based fishing rights by

the passage of Public Law 280, because Congress would

otherwise be required to pay compensation to the Indians.

Id, at 413. Since Congress need not similarly compensate

Indians for the loss of asserted rights based on executive

orders, Congress was not similarly motivated to provide

an exemption for such rights from the effect of State law.

10. As we shall see, an “agreement” within the meaning of

Public Law 280 denotes a congressional statute ratifying an under-

standing between Indians and federal officials, and hence the

United States would apparently be similarly liable for the taking

of Indian rights based on such “agreements.”

18

B. Granting of Fishing Rights.

Ilowever, there is an even more compelling explanation

for Congress’ refusal to proviue an exception for executive

orders in Public Law 280. The courts have been more

reluctant to infer the creation of Indian fishing rights from

executive orders than from other federal laws such as

treaties and statutes, to the extent that such rights are

beyond the reach of State law, In determining the effect

of executive orders, the courts have looked not to the intent

of the federal executive officer in issuing the order, but

rather to the intent of Congress in authorizing the order

to be issued.

For instance, in Hynes v. Grimes Packing Co., 337 U.S.

86 (1949), the Secretary of the Interior issued an executive

order enlarging an Indian reservation, and giving Indians

the exclusive right to fish on the reservation; the Court in-

validated the order to the extent that it gave exclusive fish-

ing rights to the Indians, on grounds that the Secretary

lacked authority to grant such rights “in the absence of

specific and unambiguous legislation.” Jd. at 105. In Organ-

ized Village of Kake v. Egan, 369 U.S. 60 (1962), an Indian

tribe claimed that the Secretary of the Army, who issued

permits to Indians to operate off-reservation fish traps, had

exclusive authority to regulate the use of such traps, to the

exclusion of State authority; the Court rejected this claim

by noting that none of the congressional acts cited by the

tribe, such as the White Act, 48 U.S.C. §§ 221-228, gave such

exclusive authority to the Secretary. In Metlakatla indian

Community v. Egan, 369 U.S. 45 (1962), a companion case

to the Aake Village case, another Indian tribe claimed

that the Seere ary of the Interior had exclusive authority

to regulate the use of fish traps on a reservation; the

Court upheld the tribe’s claim on grounds that an 1891

19

congressional act gave such authority to the Secretary.

Significantly, the Court distinguished the Kake Village

and Metlakatla cases not only on grounds that a reserva-

tion was involved in one case but not the other, but also

on grounds that Congress gave the Secretary the exclusive

authority to regulate Indian fishing in one case but not the

other. Id. at 62.

Thus, the Hynes, Kake Village and Metlakatla cases con-

vineingly show that Indian fishing rights based on execu-

tive orders must be construed in light of the original con-

gressional delegation of authority, not in light of the order

itself. This is simply a manifestation of the general rule

that a federal executive officer acquires only that authority

which Congress delegates to him. E.g., Miller v. United

States, 294 U.S. 435, 439 (1935). This principle seems par-

ticularly appropriate in defining the right of a State to

regulate Indian conduct, for an executive order—unlike a

treaty, agreement” or statute—is not subject to congres-

sional approval. An executive order can be issued by an

informal administrative process, without the open and

deliberative discussions attendant to the congressional

11. An “agreement,” within the meaning of Publie Law 280,

is subject to congressional approval. In 1871, Congress passed a

law prohibiting the President from entering into further treaties

with Indian tribes, a move designed to give the House of Repre-

sentatives a hand in dealing with the tribes. 16 Stat. 544 (1871) ;

Cohen, Handbook of Indian Law (U.S. Govt. Printing Off. 1942),

67. Thereafter, Congress dealt with the tribes by passing statutes,

rather than by ratifying treaties. /bid. In instances where a statute

ratified an understanding between federal officials and an Indian

tribe, the statute was entitled an “agreement.” Ibid. Several such

“agreements” have been entered into between Congress and tribes.

See, ¢.g., 18 Stat. 167 (1874); 17 Stat. 456 (1873); 18 Stat. 36

(1874); United States v. Seminole Nation, 299 U.S. 417, 428

(1937); DeCoteau v. District County Ct., ...... US. ....... 95 S.Ct.

1082 (1975). Thus, an “agreement” within the meaning of Public

Law 280 is a statutory substitute for a treaty, utilized by Congress

after it surrendered the power to make treaties in 1871.

20

process. In fact, the power to create an Indian reserva-

tion by an executive order does not even reside exclusively

in the President; the power can be exercised by the head

of an executive department,” or even by the head of an

agency within the department. Under these circumstances,

the courts have wisely chosen to look to the intent of Con-

gress, not the intent of the federal executive officer, in deter-

mining the rights of the Indians to act beyond the laws of

the State in which they reside.

This principle, we submit, explains why Congress chose

not to except executive orders from the effect of Public

Law 280. On the one hand, a congressional delegation of

authority to a federal executive officer to exclusively

regulate Indian fishing, ur at least to preclude State regula-

tion of such fishing, creates Indian rights which are directly

traceable to a congressional statute, and hence are protec-

table under Public Law 280 anyway; in that event, there

is no need to provide an exception for executive orders

issued by the federal officer. On the other hand, where no

such congressional authorization was given, it is doubtful

if the federal officer has authority to independently create

any such Indian rights, and thus an executive order issued

by such an officer should not be invoked as the basis for

such rights. Congress thus meant to forestall the assertion

of claimed fishing “rights” based—as here—solely on ex-

ecutive orders, where Congress did not provide for the

creation of such rights. In this way, Congress thus sought

12. Hynes v. Grimes Packing Co., supra (reservation created

by Secretary of the Interior).

13. Northern Pac. R’y Co. v. Wismer, 246 U.S. 283, 287-288

(1918) (reservation created by Indian inspector under direction

of Commissioner of Indian Affairs); United States v. Walker

River Irr. Dist., 104 F.2d 334, 338-339 (9th Cir. 1939) (reservation

created by Commissioner of General Land Office).

21

to clarify the rights of the Indians and the States, an objec-

tive harmonious with the general purpose of Public Law

280 to authorize certain States to assume jurisdiction over

specific Indian conduct and property. This, we submit, ex-

plains why the Department of the Interior, in recommend-

ing that the word “law” be changed to “statute” in H.R.

1063, concluded that this change would make the law more

“precise and certain.” California’s Exh. 6(k), p. 3.

The foregoing analysis indicates that we should look to

Congress’ intent in passing the 1853 and 1864 acts, not the

intent of the President in issuing the 1855 and 1891 execu-

tive orders, in determining the effect of Public Law 280

here. Neither of these Congressional acts can remotely be

construed as authority for the Indians to fish in violation of

California law. The acts did not even create a reservation,

much less any specific rights of Indians on a reservation.

Rather, the acts merely authorized the President to create

undefined reservations for undefined purposes at un-

defined locations. The acts did not suggest that any par-

ticular tribe should have the right to fish at any particular

location, much less that any such right should be superior

to California law. Thus, this is a perfect example of the

situation which Congress had in mind in seeking, by the

passage of Public Law 280, to clarify the rights of the

Indians and the States.

Moreover, nothing in the 1853 or 1864 congressional acts

suggests that the Secretary of the Interior, or any other

federal officer, is to regulate Indian fishing on the Kiamath

14. Thus, the canon of construction which requires that am-

biguities in “treaties and statutes ratifying agreements” be resolved

in favor of Indians, Antoine v. State of Washington, ...... U.S.

pane , 48 U.S.L.Wk. 4257, 4259 (1975), which does not apply to

executive orders anyway, was not intended by Congress to be

applied in resolving ambiguities in executive orders under Public

Law 280.

22

River Reservation. In fact, no federal officer regulates

such fishing, or seeks to do so. Nor does the tribe itself

regulate such fishing, or seek to do so. In fact, the tribe

has not sought to intervene on the side of the petitioner,

and has never given any indication of a desire to be respon-

sibility for the management of the fishery.’® Thus, this is not

a ease, as in Kake Village and Metlakatla, where a tribe

sues a State to gain control over fishing by its own mem-

bers; rather, this is a case where an individual Indian,

caught in the act of violating State law, defends his

nets by defending his conduct. Hence, the intervenor seeks

the benefits of an exclusive fishing right, without bearing

the burden—borne by California for many decades—of pro-_

viding for effective management and control of the fishery.

The intervenor’s position would deprive the fishery—in

terms of the Indians’ access to the fishery—of any regula-

tory control by federal, State or tribal authorities. This

result should be anathema in an age when we have learned,

through difficult experience, that our natural resources are

not inexhaustible, a lesson which has prompted recent con-

gressional legislation urging the States to take the lead in

protecting these resources. E.g., Environmental Quality

Improvement Act, 84 Stat. 114 (1970), 42 U.S.C. § 4371(b)

(2) (1970). It was certainly not the intent of Congress

in authorizing the President to issue the executive orders

involved here—much less the intent of the President in

issuing the orders—to achieve this result.

‘The lower court relied heavily on language in the

Meilakatla decision, to the effect that the regulations

adopted by the Secretary of the Interior might be read into

the list of exceptions contained in Public Law 280. 369 U.S.

15. In facet, the Yurok tribe, unlike most Indian tribes, does

not maintain a tribal roll, and has no cohesive tribal organization.

23

at 56-57; Appendix 1, pp. 6-7. Several factors undercut the

significance of that conclusion here. First, the Court noted

that the legislative history of Public Law 280 is “silent”

and “here veiled from scrutiny.” 369 U.S. at 57. Thus, the

Court was unaware of the materials offered in this case

which penetrate the legislative veil, and which show that

Public Law 280 was only intended to protect claimed rights

which are “precise and clear” and “expressly” based on a

treaty, agreement or statute. Moreover, to protect itself

against the possibility that the veil would be subsequently

penetrated, the Metlakatla Court noted that, in any event,

the fishing rights of the Indians were also based on the

statute which established the reservation. The Court stated:

“Tn any event, the proviso [in Public Law 280] also

protects rights given the Indians by statute respecting

the control and regulation of fishing, and the 1891

statute gave the Metlakatlans the right to fish under

regulations of the Secretary of the Interior.” Ibid.

Therefore, the decision hardly constitutes a definitive state-

ment of the effect of Public Law 280 upon executive orders,

and should not preclude that question from being reviewed

in this case.

Second, the reservation in the /etlakatla case was estab-

lished directly by congressional act, and the regulation

issued by the Secretary of the Interior was in furtherance

of the act’s provisious. The act directed the Secretary to

issue rules and regulations applicable to Indians on the

reservation, a provision which—as noted by the Court—is

“unusual.” Jd. at 53. Accordingly, the Secretary issued

regulations—described by the Court as “without parallel,”

ibid—which established a minimum number of fish al-

lowed to escape from the traps, and required members

of the tribe to secure fishing permits from the Secretary.

24

Id. at 47, 48. Thus, the congressional act contemplated

that the Secretary—rather than the State—would manage

the fishery resource, and the Secretary in fact did so.

The situation in this case is vastly different from that in

the Metlakatla case. Here, unlike Metlakatla, the congres-

sional acts do not authorize the Secretary to regulate Indian

fishing. Here, unlike Metlakatla, the Secretary does not in

fact regulate such fishing, or seek to do so. Here, unlike

Metlakatla, the congressional acts did not even establish

the reservation, much less the rights of Indians on the

reservation. Thus, Metlakatla should not be construed, as

held by the lower court, as a carte blancge for Indians to

ignore State fishing laws because their “rights” are pur-

portedly based on an executive order. Rather, Metlakatla

should be construed as permitting such fishing only where

Congress itself indicates, with reasonable clarity, that the

fishery resource is to be managed by federal rather State

authorities. No such congressional indication exists in this

case.

Finally, the lower court, in providing an exception for

executive orders based on a congressional statute, appar-

ently would exclude exceptions for executive orders which

are not based on such authority. This distinction leads to

illogical and absurd results. Prior to 1887, the executive de-

partment frequently created Indian reservations by the

issuance of executive orders, although it lacked congres-

sional authorization to do so. Sioux Tribe v. United States,

316 U.S. 317 (1942). In 1887, Congress authorized the execu-

tive department to thereafter create Indian reservations,

although this authority was rescinded in 1919. 24 Stat. 388

(1887) ; 41 Stat. 3, 34 (1919) ; Sioux Tribe v. United States,

supra. Thus, the court’s decision in this case, by including

congressionally-authorized executive orders within the list

25

of exceptions in Public Law 280, would so include executive

orders issued after 1887, but not prior to 1887. The effect

of Public Law 280 upon Indian fishing rights based on an

executive order would, under the court’s opinion, thus de-

pend on when the executive order was issued. This distine-

tion has no relevance whatsoever to the purposes for which

Public Law 280 was enacted, and nothing in that law or its

legislative history suggests such a distinction.”*

Therefore, Congress, in passing Public Law 280, clearly

intended not to provide an exception for the fishing

“rights” claimed by the intervenor here, and the conclusion

of the lower court to the contrary is erroneous.

ll. Indians on the Klamath River Reservation Are Subject to Cali-

fornia's Fishing Laws When Fishing on Surplus Reservation

Lands Owned by Non-Indians.

Prior to 1892, much of the land of the Klamath River

Reservation were occupied by non-Indian settlers. H.R.

Rep. No. 161, 52d Cong., 1st Sess. (1892). Congress passed

an act in that year which (1) set aside certain reservation

lands for Indian trust allotments, tribal communities and

tribal use, (2) authorized existing settlers to acquire title

16. In noting that the executive order in this case was issued

pursuant to congressional authorization, the lower court distin-

guished this case from Sioux Tribe v. United States, supra, where

the executive order was apparently not issued pursuant to con-

gressional authorization. Appendix 1, pp. 5-6. However, nothing in

Sioux Tribe supports a distinction between executive orders issued

pursuant to a congressional act, and those that are not. Moreover,

any such distinction was rejected by the later decision in Hynes

v. Grimes Packing Co., supra. There, the Court relied on the

Sioux Tribe decision in refusing to uphold an executive order

granting exclusive fishing privileges to an Indian tribe, even

though the order was issued pursuant to congressional authority.

Thus, Hynes interprets Sioux Tribe as applying to all executive

orders, regardless of whether such are issued pursuant to a con-

gressional act.

26

to their lands, since such lands were surplus to the Indians’

needs, and (3) opened up the remaining lands of the reserva-

tion, which were also surplus to the Indians’ needs, to entry,

settlement and purchase by non-Indians under the home-

stead laws, 27 Stat. 52 (1892).17 The land on which the in-

tervenor’s nets were seized were part of the surplus lands

held under non-Indian ownership.’* The Court of Appeal

held that the intervenor’s right to fish in violation of Cali-

fornia law extends to such lands, and is not limited to the

other lands set aside for tribal use. Appendix 1, pp. 9-10.

We pointed out that specific federal laws make California’s

fishing laws applicable on surplus lands held under non-

Indian ownership. The lower court, however, failed to con-

sider the effect of any of these laws in its decision.

Initially, we wish to emphasize that this question is im-

portant not only in California, but also in other states with

reservation lands which are held, in part, under non-Indian

ownership. Historically, reservation lands which were sur-

plus to the Indians’ needs were disposed of by either of

two different methods. First, surplus lands on some reserva-

tions were “ceded,” or sold, to the United States, which

acquired absolute title to such lands; the United States

then typically sold such lands to non-Indian homesteaders.

DeCoteau v. District County Ct., ... U.S. ..., 95 S.Ct. 1082

(1975); Kennedy v. Becker, 241 U.S. 556 (1916); Cohen,

Handbook of Indian Law (U.S. Govt. Printing Off., 1942)

17. The surplus reservation lands not sold to non-Indians were

“restored to tribal ownership,” and “added to and made a part of

the existing (reservation). . . .” in 1958. 72 Stat. 121 (1958).

18. The lower court erroneously stated that the nets were seized

at Brooks Riffle, a spot where the intervenor’s family traditionally

fished. Appendix 1. p. 10. In fact, this Court found, during the

previous appeal in this ease, that the nets were seized near, not at

Brooks Riffle, 412 U.S. at 484, a finding supported by the undis-

puted evidence in this case. CT 135; RT 66. The intervenor’s family

owns a trust allotment at the riffle, but the nets were not seized on

the allotment. RT 60, 66.

27

{hereinafter “Cohen’”], 334-336; U.S. Department of the

Interior, Federal Indian Law (U.S. Govt. Printing Off.,

1958) [hereinafter “Federal Indian Law”], 710-717. Second,

surplus lands on other reservations were sold directly to

non-Indian homesteaders, but were not formally “ceded”

to the United States; the United States merely acted as a

trustee of such lands for the Indians’ benefit, but this trust

status ceased upon the purchase of such lands by non-Indian

homesteaders. Seymour v. Superintendent, 368 U.S. 351

(1962); Mattz v. Arnett, 412 U.S. 481 (1973) ; Cohen, supra

at 334-336; Federal Indian Law, supra at 710-717. The

former method was prevalent prior to the 1880’s, and the

latter method, authorized by the General Allotment Act of

1887, 24 Stat. 388, was prevalent thereafter. bid. The 1892

act in this case, which incorporated the provisions of the

General Allotment Act of 1887, apparently adopted the

latter method in disposing of surplus lands of the Klamath

River Reservation.”

This Court has held that surplus lands “ceded” to the

United States, over which the United States acquires abso-

lute title, lose their reservation status, and for that reason

that State law is fully applicable on such lands. DeCoteau

v. District County Ct., supra; Kennedy v. Becker, supra.”

But the Court has yet to consider the applicability of the

State’s fishing laws, as in the instant case, upon surplus

lands owned by non-Indians, where such iands were not

formally “ceded” to the United States. Hence, this import-

ant issue is one of first impression in this case.

19. However, it is not entirely clear that the surplus lands of

the Klamath River Reservation were disposed of by the latter

rather than the former method, for a 1958 congressional act, in

restoring the unsold portion of such surplus lands to tribal owner-

ship, referred to such lands as “ceded.” 72 Stat. 121 (1958).

20. The Court recently reached the opposite result, however,

in a case where the statui> passing title to the United States in-

e

28

The lower court, in holding that California’s fishing laws

have no effect on surplus lands owned by non-Indians,

seemed to assume that such laws have no effect anywhere

on the reservation, simply because of the fact that the

lands are within a reservation. Such, however, is not the

law. The applicability of California’s laws on such surplus

lands obviously hinges on Congress’ intent in providing for

non-Indian ownership of such lands. Cf. Kennerly v. Dis-

trict Court, 440 U.S. 423, 426-427 (1971); Organized Vil-

lage of Kake v. Egan, 369 U.S. 60, 73-74 (1962) ; Mescalero

Apache Tribe v. Jones, 411 U.S. 145, 148 (1973); Antoine

v. State of Washington, supra. Here, both the 1891 exeen-

tive order establishing the Klamath River Reservation, and

the 1892 congressional act providing for the sale of surplus

lands to non-Indians, expressly indicate that such lands are

not reserved for the Indians’ use, and thus that the State’s

fishing laws are applicable on such lands.

The 1891 executive order, establishing the reservation,

provided “that any tract or tracts included within the

above described boundaries (of the reservation) to which

valid rights have attached under the laws of the United

States are hereby excluded from the reservation as hereby

extended.” 1 Kappler 815. This proviso clearly constituted

a reference to surplus lands held by non-Indian settlers.”

corporated an “agreement” specifically preserving the Indians’

right to hunt and fish on such lands; there, the Court held that

the State was unable to apply its hunting and fishing laws on such

lands, unless it shows a proper conservation need for the applica-

tion of its laws. Antoine v. State of Washington, ...... Pay

U.S.L.Wk. 4257 (1975).

21. According to a House report, this proviso was inserted to

“{give] to those who have settled upon [the surplus lands] .. .

in good faith the prior right to enter that portion upon which

settlement has been made.” H.R. Rep. No. 161, 52d Cong., Ist Sess.

1 (1892).

29

Although the proviso might support the broader conclusion

that such lands are not even a part of the reservation, it at

least supports the narrower conclusion that such lands are

not reserved for the use of the Indians, and that the State’s

fishing laws are applicable to Indians on such lands. Al-

though this matter was fully briefed, the Court of Appeal

failed to consider the effect of the proviso in its decision.

The 1892 act, opening up the surplus reservation lands

to settlement by non-Indian homesteaders, similarly indi-

cated that such lands were not reserved for Indian use. The

act defined such surplus lands as “lands within said reser-

vation ... not reserved for the permanent use and occupa-

tion” of the Indians, and differentiated such lands from

those to be “set apart .. . for the permanent use and occu-

pation” of the Indians. 27 Stat. 52, 53 (1892). (Emphasis

added.) Additionally, the legislative history behind the

1892 act reveals that the act was passed because the In-

dians “do not need all the lands as presently reserved for

their use,” and that all lands “embraced within the said

reservation are not needed (as a reservation) for Indian

purposes.” Annual Report of the Commissioner of Indian

Affairs to the Secretary of the Interior, pp. XLVIII-

XLIX (1885); H.R. Rep. 1148, 47th Cong., 1st Sess. 2

(1882). Thus, the language and legislative history of the

1892 act shew that the surplus reservation lands were not

reserved for tribal use, and that Indians were not to fish on

such lands in violation of State law. Again, the Court of

Appeal failed to consider the effect of the 1892 act in its

decision.

Our analysis is also supported by the legal effect of the

1892 act upon lands acquired by non-Indian homesteaders.

The act vested such homesteaders with the same title that

vested in other persons “under the laws of the United

30

States granting homestead rights ....” 27 Stat.52 (1892).

Under the homestead laws, 12 Stat. 398 (1862), State law

fully applies to homesteaded property, once the home-

steader has perfected title to his property. Buchser v.

Buchser, 231 U.S. 157 (1913). Since State law is thus ap-

plicable to homesteaded property on non-reservation lands,

State law is made applicable to homesteaded property on

the Klamath River Reservation by virtue of the 1892 act.

Again, the Court of Appeal ignored this argument.

Therefore, Congress clearly did not intend for the sur-

plus lands sold to non-Indians on the Klamath River

Reservation to be used for tribal purposes such as fishing.

Such lands, unlike other lands on the reservation, were

not held in trust by the United States for the Indians’ use,

for the trust status of the United States ceased upon the

sale of such lands to non-Indian homesteaders. Such lands,

unlike other lands on the reservation, were not in fact used

by the tribe, or by individual Indians, for tribal activities

such as fishing. Thus, Congress intended that any right of

the Indians to fish was to be exercised on other reservation

lands, not on the surplus lands. The disposition of these

surplus lands contrasts sharply with their disposition in

Antoine v. State of Washington, supra, where the State’s

attempt to regulate indian fishing on surplus lands was

rejected; there, the Indians’ right to fish and hunt on such

lands was expressly preserved by the act providing for the

sale of such lands.”

22. On this issue, the lower court cited the decisions in the

Antoine and DeCoteau cases. Appendix 1, pp. 9-10. However, the

court failed to note that the Antoine decision rested on the fact

that the congressional act providing for the sale of surplus lands

specifically incorporated an “agreement” preserving the Indians’

right to hunt and fish on such lands. Moreover, the Antoine Court

also noted that the State in that case made no attempt to show

that its regulation was necessary for conservation purposes, im-

31

Additionally, if California’s fishing laws are inapplicable

on surplus reservation lands, apparently its other laws are

equally inapplicable. For instance, California law prevents

a person from trespassing upon the property of others, and

from creating public and private nuisances. Calif. Pen.

Code § 602; Calif. Civ. Code §§ 3479-3503. However, if Cali-

fornia law is inapplicable on reservation lands owned by

non-Indians, the intervenor can apparently not only fish on

such lands in violation of the State’s fishing laws, but also

trespass upon such ‘ands in violation of the State’s property

laws.

The lower court sought to avoid this result by stating

that this is not a dispute between the Indians and private

landowners, thus suggesting that the State’s property laws

—as opposed to its fishing laws—may be applicable on such

lands. Appendix 1, p. 10. But this distinction makes no

sense. If the State’s: property laws have effect on surplus

reservation lands which the tribe does not traditionally use

for tribal purposes, the State’s fishing laws should have

the same effect. In fact, the State’s fishing laws, which seek

to protect a fishery resource for the benefit of all citizens,

stand on a stronger—not weaker—footing than the State’s

property laws, which merely seek to protect the interest of

an individual. A proper exercise of the State’s police power

has always been held to override individual property

rights; for instance, a proper exercise of the police power

does not give rise to compensation for the loss of individual

property rights. Beverly Oil Co. v. City of Los Angeles,

40 Cal. 2d 552 (1953). Thus, there is no basis for giving the

plying that its result would be different if—as here—the State

had attempted to make such a showing. 43 U.S.L.Wk. at 4262.

We fail to understand how the DeCoteau decision supports the

decision of the Court of Appeal, for that decision upheld the right

of the State to regulate Indian fishing on surplus lands ceded to

the United States.

32

State’s property laws greater force on surplus reservation

lands than the State’s conservation laws, and the Court of

Appeal failed to even suggest a basis for its distinction.

Therefore, whatever the right of the intervenor to violate

California’s fishing laws elsewhere on the reservation, this

right does not extend to surplus reservation lands owned

by non-Indians, lands which are not held in trust by the

United States for the Indians’ use and which have not

been traditionally used for tribal purposes.

Ill. California Has the Right to Determine the Nature and Extent

of Indian Subsistence Fishing, and Has Properly Done so in

This Case.

The Court of Appeal ruled that the intervenor has the

right to fish for subsistence purposes, and that California—

by prohibiting the use of gill nets by Indians—is interfering

with the exercise of that right. Appendix 1, p. 12. In fact,

California allows Indians on that reservation to fish for

subsistence purposes. Section 7155 of the State’s Fish and

Game Code, a statute passed solely for the benefit of Indians

on that reservation, specifically allows the Indians to fish

“for subsistence purposes.” Appendix 3. The statute quanti-

fies the nature of such subsistence fishing, in terms of num-

bers of fish and methods of taking, and in fact allows the

Indians greater fishing rights than those enjoyed by the

white man. But the statute prohibits the use of gill nets for

subsistence purposes. Thus, the issue here is not whether

the Indians should be allowed to fish for subsistence pur-

poses, but rather (1) whether a State can determine the cir-

cumstances which constitute “subsistence” fishing, and (2)

whether California’s determination in this case, to the effect

that gill nets are not necessary for subsistence, is correct.

The lower court, by voiding section 7155 on the basis of no

33

credible evidence whatsoever,” answered both questions in

the negative.

First, we strongly urge that a State has the right to de-

termine the nature and extent of Indian “subsistence” fish-

ing, if such a determination is reasonably supported by the

evidence. Otherwise, it would be impossible for the State’s

enforcement officers to know whether, and how, to enforce

its laws against Indians who, in the State’s view, are taking

more fish than necessary for subsistence. An excellent ex-

ample of these administrative difficulties is found in this

case. The intervenor was using five gill nets, totalling 268

feet in length. CT 135, It is ridigulous to suppose that the

use of so many nets, and of such length, is necessary to

enable the intervenor and his family to “subsist.” Rather,

the use of such nets enables the intervenor to catch more

fish than he actually needs, thus encouraging him to waste

or sell the excess fish. This is the very result which Cali-

fornia’s Legislature sought to prevent by prohibiting the

use of gill nets for subsistence purposes.

Yet the lower court, without considering the size and

number of nets involved in this case, apparently upheld the

right of Indians to use any amount of gill nets of any size

for the taking of any amount of fish. Thus, the court, in one

breath holding that the Indians may fish without restriction

for “subsistence” purposes, in the next breath precludes

California from determining whether the Indians are ac-

tually so fishing. As a result of the court’s decision, we do

not know, for enforcement purposes, how many fish, or what

kinds of fish, may be taken by the Indians, or by what means

such fish may be taken. The court, in invalidating section

23. The only evidence cited by the court for its conclusion

consists of the intervenor’s answer—a self-serving “yes”—to a

conclusionary, leading question as to whether he uses gill nets for

subsistence purposes. Appendix 1, p. 4; RT 55.

34

7155, has failed to set forth any guidelines, such as those

found in section 7155, drawing the line between subsistence

and non-subsistence fishing. The decision thus creates monu-

mental problems of law enforcement as the State seeks to

draw this line, which will surely result in renewed litigation.

In fact, as a direct result of the lower court’s decision, a

comparatively small group of Indians, now free of any

regulatory control by State, federal or tribal authorities,

has begun to deliberately dump vast quantities of spoiled,

excess fish on the river banks, to sell vast quantities of fish

to non-Indians both on and off the reservation, to harass

non-Indian fishermen and to threaten the use of firearms

against California’s fishing authorities.* This deteriorating

situation demonstrates anew the inadvisability of substi-

tuting a judicial judgment for one that—with respect to the

definition of “subsistence” fishing—properly lies within the

legislative province. The Legislature, assisted by the arm

of the executive department, is better equipped than the

24. We are informed by several reliable sources that, since the

lower court's decision, a comparatively small band of Yurok Indi-

ans has dumped several truck-loads of spoiled salmon on the

river banks, set up a stand on the river bank at which salmon are

sold, entered the camps of non-Indian fishermen at night to sell

salmon at current market rates, sold other quantities of fish off

the reservation to retailers, made it difficult for non-Indian fisher-

men to catch salmon during the day by harassing such fishermen

with claims that the Indians “own” the river, and threatened to

use firearms—which some Indians are reliably reported to be

carrying—against State fishing authorities who seize any Indian

nets in the future. See Appendix 6. Also, the intervenor’s attorney

was recently quoted as advising members of the tribe that, as a

result of the lower court's decision, the tribal members have the

right to license non-Indians when fishing on the river, and that

these tribal members are making plans to provide such licensing

authority. Del Norte Triplicate, Sept. 3, 1975, p. 1. Although the

facts set forth in this footnote are obviously not in evidence, since

they oceurred subsequent to the lower court's decision, this Court

may nonetheless consider these facts in determining, in its discre-

tion, whether to grant our petition. Prettyman, “Petitioning The

United States Supreme Court,” 51 Va. LZ. Rev. 582 (1965).

ad

"e

35

judiciary to regulate a fishery resource on a day-to-day

basis.

Second, the legislative judgment, in prohibiting the use

of gill nets for subsistence purposes, is clearly correct. Gill

nets are associated with commercial rather than subsistence

fishing, and were not traditionally used for subsistence

purposes by the Indians. According to a publication of the

U.S. Department of the Interior, “a gill net is one of the

oldest forms of nets used for commercial fishing.” Califor-

nia’s Exh. 11, p. 1.% An article written in 1942 by an

anthropologist on Indian fishing techniques in northern

California, published in an official State bulletin, stated

that Indians fished in streams with A-frame nets, are dip

nets, poisons and baskets. California’s Exh. 12. Another

article written in 1924, published in the same bulletin,

indicated that Indians on the Klamath River fished by use

of spears, traps and commercial wiers. California’s Exh.

13. No mention is made in the articles of the use of gill

nets, particularly for individual rather than tribal use.

Thus, the Indians did not traditionally use, and hence do

not presently need, gill nets for subsistence purposes.

The intervenor has offered no evidence whatsoever that

Indians traditionally used gill nets for subsistence pur-

poses, and in fact his evidence supports the opposite con-

clusion, First, the intervenor testified that he personally

used gill nets on infrequent occasions since 1952. CT 49, 57,

58, 62-63, 69. Second, the intervenor’s mother testified

25. California’s exhibits 11 through 16 consist of legislative

reports and other official federal and State publications, of which

the court can take judicial notice. See Calif. Evidence Code § 452;

White v. State of California, 21 Cal. App.3d 738, 742-743, 99 Cal.

Rptr. 58, 60 (1971); Atlantic Transport Co. v. Rosenberg Bros.

& Co., 34 F.2d 843, 845 (9th Cir. 1929) ; In re Plumer, 9 F. Supp.

923 (S.D. Cal. 1935). These exhibits were attached as appendixes

1 through 6 to our petition for rehearing to the Court of Appeal.

36

that her father used gill nets for commercial purposes,

hiring other Indians to operate the nets and transport the

catch by wagons to commercial canneries. CT 73-75, That

the intervenor infrequently used gill nets since 1952, after

section 7155 was passed to prohibit such nets, hardly shows

that the tribe traditionally used such nets for subsistence

purposes. That the intervenor’s grandfather used such nets

for commercial purposes shows that the nets were not

used for subsistence purposes. Since such nets were tradi-

tionally used to catch vast quantities of fish for sale, the

nets are obviously not needed to catch limited quantities

of fish for subsistence.

Moreover, gill nets are potentially destructive of the

fishery in the Klamath River. A gill net is a highly selective

device which can be stretched virtually across an entire

river, and is thus capable of ensnaring virtually every

member of a particular species which traverses that por-

tion of the river. Hence, its use has been prohibited to the

white man and Indians alike. Calif. Fish & Game Code

§§ 8603, 8664, 11003, 11014, 11015, 11037.

Therefore, California’s Legislature has properly deter-

mined that gill nets are not necessary for the Indians’

subsistence, and are potentially harmful to the fishery.

The lower court, in improperly rejecting a valid legislative

judgment in favor of its own, failed to provide any alterna-

tive guidelines to those of the Legislature, and has created

difficult problems of law enforcement which will surely

exacerbate relations between California’s Indian and non-

Indian citizens. Fortunately, this Court now has the

opportunity to arrest the deterioration of this situation by

providing a definitive statement of California’s authority to

regulate Indian fishing in that area.

37

IV. California Has the Right to Regulate Indian Fishing for Con-

servation Purposes, at Least Where Such Fishing Is Not Reg-

ulated by the United States or the Tribe and Where California

Grants Preferential Fishing Privileges to the Indians.

We argued below that the State has the right to regu-

late Indian fishing if such is reasonably regulated to the

conservation of the fishery resource. The Court of Appeal

responded by stating that “no case has come to our atten-

tion which has applied the power of a state to regulate

fishing on an Indian reservation in the interest of con-

servation.” Appendix 1, p. 11. However, the court acknowl-

edged that this question has yet to be judicially resolved,

that “the line at which State intervention might be neces-

sary has not been drawn.” Jbid. The court then suggested

such a line by concluding:

“Before the State is permitted to make inroads into

subsistence fishing by Indians on their own reserva-

tion, all other conservation methods should be ex-

hausted.” Jd. at 12.

We sympathize with the lower court’s lack of judicial

guidance on this question, and believe that this justifies

an examination of the question by this Court. However,

we strongly object to the test formulated by the lower

court, which would allow a State to regulate Indian fishing

for conservation purposes only when the State has “ex-

hausted” its alternative conservation remedies.

First, the test proposed by the lower court is unrealistic.

There are always conservation steps which a State can

take short of regulating Indian fishing, but these steps may

not be reasonable or practical. For instance, three dams,

the Trinity, Lewiston and Iron Gate dams, sit astride the

headwaters of the Klamath River, and its tributary the

Trinity River. California’s Exh. 16, p. 20; California’s

Exh. 15, p. 375. These dams provide valuable benefits to

38

California citizens, and—by regulating streamflow—pro-

vide both fishing and flood control benefits to the Indians

on the Klamath River Reservation. /bid. But the dams also

create downstream pollution that is injurious to the fishery

in the Klamath River. bid. California has tackled the

pollution problem by an intensive water quality control

program. Calif. Wat. Code §§ 13000-13361. But the “ex-

haustion” test enunciated by the Court of Appeal would

apparently require the dams to be leveled, and the entire

area restored to a state of nature. Given the needs of our

modern society, of which our Indian communities are part,

this alternative has no practical significance. Thus, it is

virtually impossible for a developed State to sustain the

burden demanded by the Court of Appeal.

Second, the State’s burden to establish a need to regulate

Indian fishing for conservation purposes should be les-

sened where the fishery is not regulated by the United

States, or the tribe. Otherwise, there would be no controls

on such fishing whatsoever, a prospect that invites the

possibility of the fishery’s impairment or destruction.

Here, the United States does not regulate the fishery. The

tribe does not regulate the fishery. Thus, if California is

unable to regulate the fishery, the intervenor and other

Indians will be allowed to take whatever fish they want, by

whatever means, regardless of the needs of the fishery.

Third, the State’s burden to regulate Indian fishing for

conservation purposes should also be lessened where the

State, rather than discriminating against the Indians,

affords them preferential fishing privileges which are with-

held from the white man. Here, section 7155 of the State’s

Fish and Game Code frees the Indians on the reservation

of any daily limits for the taking of fish, except with

respect to certain critical species (trout, salmon, sturgeon).

The section also frees such Indians of any seasonal limita-

39

tions as well. Thus, California gives preferential fishing

privileges to these Indians, thus lending credence to our

claim that the fishing restrictions which remain on the

Indians are for the purpose of protecting the fishery, not

for the purpose of discriminating against the Indians.

Under these circumstances, a more realistic test than

that proposed by the lower court, in our view, would re-

quire the State at most to bear the burden of showing

that the regulation of Indian fishi: g is a reasonable con-

servation measure, rather than requiring its antagonist

to bear the burden of showing the opposite. This test

would impose an evidentiary burden on the State in regu-

lating Indian fishing which it does not bear in regulating

fishing by others,”* and yet allow the State to realistically

fill the regulatory void created by the lower court’s deci-

sion. Such a test would thus show due concern not only

for the needs of the Indians, but also for the needs of

the fishery.

Using the test which we propose, we have clearly shown

_ that the regulation of Indian fishing is reasonably—indeed

compellingly—related to the conservation of the fishery

resource. According to a legislative study, the salmon

fishery in the Klamath River is in a “critical,” “alarming”

and “grave” state. California’s Exh. 16, pp. 20-21. The

salmon runs in the river have steadily declined for several

decades, ibid., RT 86, 91, the spawning areas have been

26. The State bears no burden at all in establishing its right

to regulate the use of fishing nets by non-Indians. The regulation

of such nets constitutes a reasonable exercise of the State’s police

power, since the regulation is directed at “the protection and con-

servation of food fish for the benefit of the present and future

generations of the people of the state,” and will not be overturned

unless “palpably arbitrary.” People v. Monterey Fish Products

Co., 195 Cal. 548, 556, 557, 234 Pace. 398, 401-402 (1925). Accord,

In re Martncovich, 48 Cal. App. 474, 481, 192 Pace. 156, 159-160

(1920).

40

drastically reduced, and spawning stocks have dropped

alarmingly.”

The Court of Appeal stated, however, that the Indians

on the reservation were not the cause of the decline of

the salmon runs, because they had fished in the river prior

to the time that the decline was observed. Appendix 1,

p. 12. But the court missed the issue, The issue is not

whether the Indians caused the decline in the salmon runs,

but rather whether unrestricted Indian fishing will impair

the fishery. Since California has regulated Indian fishing

on the reservation for several decades, obviously the

Indians are not the cause of the fishery’s current decline,

and we do not so contend. Rather, we contend that the

resumption of unrestricted Indian fishing will create an

additional threat to the fishery, and thus compound the

effect of other factors which have caused the decline. The

lower court did not address itself to this concern. Rather,

by freeing the Indians of California’s regulatory program,

the court used the success of the program as a basis for

eliminating it altogether.”

27. Although there were once 6,000 miles of salmon spawning

areas in central valley streams, that figure was reduced to 528

miles in 1928 and 300 miles in 1959. California’s Exh. 16, p. 20.

Spawning stocks in these streams have dropped alarmingly. Ibid.

The number of fish reaching the upstream hatcheries is barely at

the minimum level to assure the fishery’s survival. RT 28, 86, 91.

28. The Court of Appeal similarly ignored the potential impact

of unrestricted Indian fishing upon the fishery. Several decades

ago, muny Indians on the Klamath River Reservation fished for

commercial purposes under the guise of fishing for subsistence pur-

poses, a situation which resulted in California’s regulation of such

fishing. California’s Exh. 6(1). Since the Indians’ own practices

led to California’s management program, there is no assurance

that such practices will not be resumed if the program is elim-

inated. In fact, events subsequent to the lower court’s decision

clearly indieate that these practices can be expected to resume.

Appendix 6. Moreover, many Indians on the Hoopa Valley Reser-

vation proper, able to catch more fish as the result of streamflow

41

Of course, California’s interest in regulating Indian

fishing would be weaker if it were oblivious to the other

problems which have contributed to the fishery’s decline.

These problems generally consist of water pollution caused

by upstream dams and logging practices, and increased

fishing pressure off the California and Oregon coasts and

in the Klamath River itself. California’s Exh. 16, pp. 20-

21. But California has tackled these problems with dili-

gence. To provide for improved water quality, it has

passed, and vigorously enforces, severai pieces of legisla-

tion to limit or prevent all forms of water pollution, includ-

ing that caused by dams and-logging practices.” To re-

lieve pressure caused by increased fishing, it has banned

high sea netting off the entire California coast. California’s

Exh. 16, p. 21. It has also restricted the seasons and gear

for the taking of fish in the Klamath River by non-Indians.

14 Calif. Admin. Code §§ 20.60, 21.50(b)(1). In addition

to regulating the conduct of others, California’s fishing

regulation resulting from upstream dams, have taken “a danger-

ously high proportion of the spawning runs” of the river. Califor-

nia’s Exh. 15, p. 376. Since the Yurok Indians on the Klamath

River Reservation vastly outnumber the Hoopa Indians on the

Hoopa Valley Reservation proper, the elimination of fishing re-

strictions on the downstream reservation may have a potentially

disastrous effect on the fishery. These facts strongly support the

expert testimony of the official of the Department of Fish and

Game who testified at the trial that the removal of such restrictions

“would hurt the salmon and anadramous fish in the Klamath

River.” RT 27.

29. California’s Porter-Cologne Act sets up regional boards to

impose “requirements” for the discharge of pollutants in the

State’s waters. Calif. Wat. Code §§ 13000-13361. Another recent

act authorizes the State’s fishing authorities to prevent any stream-

bed alteration, such as logging practices, which adversely affects

anadramous fisheries. Calif. Fish & Game Code §§ 1601, 1602.

Another law limits the environmental effects permissably caused

by logging practices. Calif. Pub. Res. Code §§ 4511-4628.

42

authorities have directly managed the fishery resource in

the Klamath River. They have built, and now operate,

upstream hatcheries to provide spawning areas for the

fish. RT 28, 86, 91; California’s Exh. 16, p. 21. They have

constructed artificial channels for natural propagation, to

supplement the hatcheries. Jd. at p. 20. They plant sub-

stantial amounts of salmon in the river each year. Id. at

21. They have torn down many small and unused dams,

and removed much logging debris, in the Klamath River,

both of which cause downstream pollution. California’s

Exh. 14; California’s Exh. 15, p. 370. Thus, whether Cali-

fornia has “exhausted” its conservation remedies, it has

certainly pursued these remedies with unrelenting dili-

gence.*®

Therefore, California has shown that its regulation of

Indian fishing in this case is reasonably related to the con-

servation of the fishery resource, that such fishing is not

otherwise regulated by the United States or the tribe, and

that it grants preferential fishing privileges to the Indians.

It should not be required to sustain a heavier burden.

30. The Court of Appeal also stated that the Indians could

frustrate California’s fishing laws by traveling to the upstream

reservations, where, according to the court, California is unable to

regulate Indian fishing. Appendix 1, p. 12. Although we do not

concede that California is without power to regulate Indian fishing

on the upstream reservations under facts resembling those in this

ease, the hypothetical situation posed by the court is unrealistic

anyway. There is no evidence that Yurok Indians have ever trav-

eled the substantial distances to the upstream reservations. for fish-

ing purposes. In fact, the Yurok, Karok and Hoopa tribes have

historically confined their activities to the Klamath River Reser-

vation, the Connecting Strip and the Hoopa Valley Reservation

proper, respectively. 65 LD. 59 (1958). Thus, the situation con-

trived by the court has not oceurred, and is not likely to oceur.

ee eS

43

CONCLUSION

The courts have yet to clarify the right of a State to

regulate Indian fishing on a reservation, and this case thus

affords an opportunity for the Court to resolve that ques-

tion. Moreover, the issues in this case are not limited to

California, but also have significance in other States where

Indian reservations are located. Finally, the lower court’s

treatment of these issues is, we submit, fundamentally

incorrect. The lower court twisted the plain language of

P: blie Law 280, and ignored its legislative history, to reach

a result which is contrary to that intended by Congress.

The court upheld the right of-Indians to fish on surplus

lands owned by non-Indians, even though these lands were

neither reserved nor used for tribal purposes. The court,

ignoring the fact that the nets in this case enabled the

intervenor to take more fish than he needs for subsistence,

failed to set forth any criteria to guide the State or the

Indians in defining the line between subsistence and non-

subsistence fishing, thus guaranteeing further litigation.

The court, by denying California’s right to regulate Indian

fishing for conservation purposes, has created a regula-

tory void whereby such fishing is not regulated by federal,

State or tribal authorities, a situation which bodes ill for

the fishery.

The lower court’s decision seems premised on the as-

sumption that—once an area is determined to be a reserva-

tion—the State has no authority over the conduct of

Indians in the area. Such is not the law. We thus urge the

Court to grant our petition in order to clarify the State’s

44

responsibility over its Indian citizens, and to rectify the

mistakes of the lower court.

Respectfully submitted,

Eve.tte J. YOUNGER

Attorney General of the

State of California

Cart BoronKay

Assistant Attorney General

Roperick WaLsTon

Deputy Attorney General

Attorneys for Petitioner

and Plaintiff

(Appendices follow)

=. —s “*

Appendix 1

In the Court of Appeal of the State of California

First Appellate District, Division Three

Filed—-May 27 1975

Court of Appeal—Firt App. Dist.

Clifford C. Porter, Clerk

1 Civil 35783

(Sup. Ct. No. 10434)

G. RayMonp Arnett, as’ Director of De-

partment of Fish and Game of the

State of California,

Plaintiff and Appellant,

vs.

5 Gru Nets, et al.,

Defendants,

Raymonp Matrz,

Intervenor and Respondent.

This is an appeal from a judgment involving the juris-

diction of the State of California to regulate fishing by

Indians on the Klamath Kiver Reservation.

In September of 1969, a California game warden seized

five gill nets owned by Raymond Mattz, a Klamath River

Indian. The Department of Fish and Game, through its

director, petitioned the Superior Court of Del Norte County

for authority to sell or destroy the nets, Mattz intervened

in the actior, claiming that the Fish and Game Code was

not applicable to Indians fishing on their reservation. When

the petition was first heard, the trial court found that the

Klamath River Reservation, at the place where the nets

2 Appendiz

were seized, was not Indian country aad, therefore, the

gill nets prohibited by the Fish and Game Code were sub-

ject to seizure. On certiorari, the United States Supreme

Court in Matt: v. Arnett (1973) 412 U.S. 481, reversed this

judgment and held that the lower 20 miles of the Klamath

River on which the nets were seized was still a reservation

despite the opening of the land to non-Indian settlement

in 1892. The cause was remanded for a determination of

“the existence of Mattz, fishing rights and the applicability

of California law notwithstanding reservation status.” (412

U.S. at p. 485.)

The trial court concluded that the State may not regulate

fishing by Indians on the Klamath River Reservation due

to the fact that the federal government in transferring

jurisdiction over Indian reservations to the State of Cali-

fornia exempted the fishing rights here involved. The court

ordered the nets returned to Mattz and the State has ap-

pealed.

Mattz “is a Yurok, or Klamath River, Indian who, since

the age of nine, regularly fished, as his grandfather did

before him, with dip, gill, and trigger nets, at a location

called Brooks Riffle on the Klamath River. ... The nets

were stored near Brooks Riffle, approximately 200 feet

from the river, and within 20 miles of the river’s mouth.”

(412 U.S. at p. 484.)

The property on which the nets were found is owned

by a private logging company. Although an 1892 Act of

Congress opened the reservation land for settlement, the

resulting ownership by non-Indians did not terminate the

reservation but was “completely consistent with continued

reservation status.” (Mattz v. Arnett, supra, at p. 497.)

The court explained, citing Seymour v. Superintendent

(1962) 368 U.S. 351, 357-358): “‘The Act did no more

Appendiz 3

[in this respect] than open the way for non-Indian settlers

to own land on the reservation in a manner which the

Federal Government, acting as guardian and trustee for

the Indians, regarded as beneficial to the development of

its wards.’ ”

The land on which the nets were found is a part of what

will be referred to as the Hoopa Valley Indian Reservation.

The Hoopa Valley Indian Reservation is composed of

three sections, as illustrated by the map below, which is

ineluded as an appendix to the opinion in Mattz v. Arnett,

supra, at p. 507.

[Map of Hoopa Valley Indian Reservation and

Extension Omitted]

The nets were found on the portion of Indian and

known as the Klamath River Reservation, a two-mile wide

strip of land extending from the mouth of the Klamath

River on the Pacific Ocean for approximately 20 miles in-

land. The land was originally reserved for Indian use in

1855. By Act of March 3, 1853, 10 Stat. 238, the President

was authorized to make reservations in the State of Cali-

fornia for Indian purposes, and the Klamath River Reser-

vation was made by presidential executive order two vears

later. In 1876, the 12-mile square area known as the Origi-

nal Hoopa Valley Reservation was formally set aside by

another executive order and in 1891 was extended to in-

clude the Klamath River Reservation and also a 30-mile

strip in between these areas referred to on the map as the

“Connecting Strip.” The Supreme Court in Mattz v. Arnett

explained that the reservations had been consolidated as

one because an Act passed in 1864, 13 Stat. 39, had au-

thorized the President to set apart no more than four

+ Appendiz

tracts for Indian reservations in California and by 1891,

four reservations had already been so set apart. (412 U.S.

at p. 493; see also Short v. United States, (Ct. Cl. 1973)

486 F.2d 561 for history of reservation. )

Mrs. Brooks, intervenor’s mother, testified that her family

fished with gills nets for their own personal use without

State interference until the 1940’s. During her girlhood, in

the early years of the century, most of the Indians on

the lower 20 miles of the river made their living by com-

mercial fishing. Her son, however, fishes only for the sub-

sistence of his family. Fish is a staple of his family’s diet

and according to intervenor’s tes{ymony, he can only catch

sufficient fish for his family’s needs by means of gill nets.

The State makes no effort to limit gill netting by Indians

elsewhere on the Hoopa Valley Indian Reservation, i.e.,

on the connecting strip or the original Hoopa Indian Reser-

vation. (See Fish & Game Code, § 12300.) On the Klamath

River Reservation, the only method of taking fish that

has been permitted is angling. In 1933, the State enacted

Fish and Game Code section 429.8 (now § 7155) providing

that Yurok Indians could obtain a permit to fish on the

Klamath for subsistence without regard to seasons and

under certain conditions not permitting gill netting. Accord-

ing to the testimony at trial, there has never been an appli-

cation for a section 7155 permit. The Indians continue gill

netting and suffering occasional arrests and confiscation

of nets.

We agree with the trial court that the State did not

acquire jurisdiction to regulate the fishing rights here in-

volved by the transference of jurisdiction over Indian

reservations to California. In 1953, jurisdiction over Indian

reservations and over Indians on such reservations was

transferred from the federal government to California by

the passage of Public Law 280 (67 Stat. 588, 18 U.S.C.

Appendix 5

§ 1162; 28 U.S.C. § 1360.) Public Law 280 provides, how-

ever, that its application shall not “deprive any Indian

or any Indian tribe, band, or community of any right,

privilege or immunity afforded under any Federal treaty,

agreement, or statute with respect to hunting, trapping,

or fishing or the control, licensing, or regulation thereof.”

The State takes the position that the asserted fishing

rights here were not based on a treaty, statute or agree-

ment but on executive order because the reservation itself

was created by executive order. The Attorney General cites

the case of Sioux Tribe v. United States (1942) 316 U.S.

317, as illustrative of the fact-that there is a distinction

drawn by the United States Supreme Court between Indian

rights based on treaties and executive orders. The Siour

Tribe case is indeed informative but does not support the

Attorney General. The Great Sioux Reservation was an

Indian reservation whose borders had been delineated by

treaty but a part of the public domain bordering on the

reservation had been set aside for Indian purposes solely

by executive order.’ Later, executive orders returning the

additions to the public domain were challenged by the

Indians and compensation claimed. In denving the claims

of the Indians, the court stated that “Since the Constitution

places the authority to dispose of publie lands exclusively

in Congress, the executive’s power to convey any interest

in these lands must be traced to Congressional delegation

of its authority.” (316 U.S. at p. 326.)

Here, the creation of the reservation can be traced to

Congressional authority, i.e., the Act of March 3, 1853, 10

Stat. 238, by which the President was “authorized to make

five military reservations from the public domain in the

1. The order was deemed necessary for the suppression of the

liquor traffic with the Indians. (316 U.S. at p. 320.)

6 Appendiz

State of California or the Territories of Utah and New

Mexico bordering on said State, for Indian purposes.”

(See Mattz v. Arnett, supra, 412 U.S. at p. 487.) Whatever

rights the Indians had on the reservation, therefore, were

not created by executive order but by statute.

The State argues that this conclusion is contrary to the

legislative intent and that the language “treaty, agreement,

or statute” must be strictly construed to exclude fishing

rights on reservations created by executive order even

where the ultimate authority is statutory. The United States

Supreme Court in Metlakatla Indians v. Egan (1962) 369

U.S. 45. did not accept an interpretation of the subject

language to exclude fishing rights promulgated by regula-

tion where the right to make the regulation was given by

statute, The court explained at pages 56-57 :

“This statute [Public Law 280] expressly protects against

state invasion all uses of Indian property authorized by

federal treaty, agreement, statute, or regulation, but only

those fishing rights and privileges given by federal treaty,

agreement, or statute. It might plausibly be argued, there-

fore, that fishing rights given by regulation are not pro-

tected and state jurisdiction is established. Legislative

history is silent as to the interpretation of the provision.

See H.R. Rep. No. 848, 83d Cong., Ist Sess.; S. Rep. No.

699, 83d Cong., Ist Sess.; 99 Cong. Ree. 9962, 10782, 10928

(1953). The apparent purpose of the proviso was to pre-

serve federally granted fishing rights. It would be sheer

speculation to attribute significance to the imperfect

parallelism of the provisions protecting property and fish-

ing rights in the absence of any suggested reason for ex-

cluding fishing rights based on regulations. The process

of statutory drafting and evolution, here veiled from seru-

tiny, is too imprecise to permit such an inference. Cf.

Appendix 7

United States v. Mersky, 361 U.S. 431, 437. In any event,

the proviso also protects rights given the Indians by stat-

ute respecting the control and regulation of fishing, and the

1891 statute gave the Metlakatlans the right to fish under

regulations of the Secretary of the Interior.”

The Attorney General takes the position that he has now

unveiled legislative history which indicates that Congres-

sional intent. For one thing, the State points out that

Congress rejected the words “law, treaty, or agreement”

in favor of “statute, treaty, or agreement.” The Attorney

General’s position is that the intent of Congress was to

exempt only those fishing rights expressly given to the

Indians by the requisite instrument, whether it be statute,

treaty, or agreement, and not to exempt rights which can

only be inferred from a treaty, agreement, or statute. The

choice of words, however, to designate the source of the

protected right ordinarily would indicate nothing as to

whether only an “expressed” right rather than an “in-

ferred” right will be protected. As evidence of legislative

intent, however, the Attorney General has offered a memo-

randum written on February 18, 1954, by the Assistant

Commissioner of Indian Affairs to the California Area

Director of the Bureau of Indian Affairs (BIA), which

explained the reason for the language used as follows:

“By recommending that the words ‘federal law, treaty or

agreement’ be changed to ‘Federal treaty, agreement or

statute,’ it was intended to make clear that the rights,

privileges or immunities to be preserved or protected were

those which the Indians erpressly reserved in treaties or

agreements with the United States or which were expressly

eranted to Indians in a Federal statute.” (Emphasis added.)

The Attorney General also draws the court’s attention

to letters from the vears 1953-1954 from various persons

8 Appendix

within the BIA generally stating that there were no Calli-

fornia Indian hunting and fishing rights granted by treaty,

agreement, or statute. It is respondent’s position on these

documents that, while it is true that an administrative

interpretation as to the meaning of a statute is to be given

respect, it is far from conclusive. (County of Marin v.

United States (1958) 356 U.S. 412.)

Public Law 280 does not state that fishing rights derived

from treaty, agreement, or statute will only be protected

if the right was expressly granted. No reason appears why

the manner in which the right was granted would make it

more or less worthy of protection and it is concluded that

no such limitation should be read into Publie Law 280, It

has been decided several times that the creation of a

reservation “for Indian purposes” encompasses the right

to hunt and fish on the reservation without further specifi-

cation. (See Menominee Tribe v. United States (1968) 391

U.S. 404: United States v. White (Sth Cir. 1974) 508 F.2d

453, 457: Donahue v. Justice Court (1971) 15 Cal.App.3d

557, 562: Kimball v. Callahan (9th Cir. 1974) 493 F.2d

564, 566; Quechan Tribe of Indians v. Rowe (S.D. Cal.

1972) 350 F.Supp. 106, 111.) This is particularly clear on

the reservation in question which was obviously chosen

with reference to the fishing. As the United States Supreme

Court stated: “The site was ideally selected for the Yuroks.

They had lived in the area; the arable land, although

limited, was ‘peculiarly adaptec to the growth of vege-

tables.’ 1856 Report 238; and the river, which ran through

a canyon its entire length, abounded in salmon and other

fish. Thid. ; 1858 Report 286.” (412 U.S. at 487.)

Since the Indians on the Klamath River Reservation had

fishing rights derived from Congress, State qualifications

of those traditional rights was precluded by force of the

Appendix 9

Supremacy Clause. (Antoine v. State of Washington (1975)

.... U.S. ...., 95 S.Ct. 944, 951.) Thus, the attempt of the State

to regulate fishing by passage of section 7155 of the Fish

and Game Code was invalid even before the passage of

Public Law 280.? It is now also improper because of the

renewed guarantee of Indian fishing rights by Public Law

280.

Because of the conclusion that the fishing rights here

derived from statute within the meaning of Public Law 280,

it is unnecessary to consider the State’s lengthy argument

that there were no fishing rights derived from an “agree-

ment” within the meaning of Public Law 280 and unneces-

sary to consider the dictum to this effect in Elser v. Gill

Net Number One (1966) 246 Cal.App.2d 30.

The Attorney General also contends that even if reser-

vation status was not terminated by the Act of 1872, the

State could at least regulate fishing on reservation lands

owned by non-Indians. This does not appear to be the con-

sequence of opening a portion of the reservation to settle-

ment by non-Indians. (See Seymour v. Superintendent

(1962) 368 U.S. 351, 357-358.) In a ease in which reservation

status was found to have been terminated, the United States

Supreme Court noted: “If the lands in question are within

a continuing ‘reservation,’ jurisdiction is in the tribe and

the Federal Government ‘notwithstanding the issuance of

any patent, [such jurisdiction] including rights-of-way run-

ning through the reservation.’ 18 U.S.C. § 1151(a). On the

other hand, if the lands are not within a continuing reserva-

2. The trial court’s couclusion that the Legislature passed sec-

tion 7155 in the mistaken belief that Klamath River Reservation

was no longer a reservation is reasonable. The State took the

position in Mattz v. Arnett that the reservation had been termi-

nated in 1892 when Congress opened the area to settlement. The

legislative motive, however, does not appear to be relevant to the

validity of the legislation.

10 Appendiz

tion, jurisdiction is in the State, except for those land

parcels which are ‘Indian allotments, the Indian titles to

which have not been extinguished, including rights-of-way

running through the same.’ 18 U.S.C. § 1151(¢).” (DeCoteau

v. District County Court (1975) ... U.S. ...., 95 S.Ct. 1082,

1084, fn. 2.) :

The case of Antoine v. State of Washington, supra, in-

volved an attempt by the State of Washington to regulate

hunting by Indians on land which had once been a reserva-

tion but which had been ceded to the United States by the

Indians. The Indians, however, had retained hunting rights

through agreement ratified by Congress. The court held

that the Supremacy Clause precluded state qualification of

those rights. In a concurring opinion, Mr. Justice Douglas

remarked: “An effort is made to restrict these hunting

rights to public lands, not to tracts ceded by this Agree-

ment and taken up by private parties. The Agreement, how-

ever, speaks only of the ceded tract, not the ultimate dis-

position of the several parts of it. We would strain hard

to find an implied exception for parcels in the ceded tract

that ended up in private ownership. ... Whether the result

would be different if the contest were between the owner

of the private tract and the Indian is a question that need

not be reached. We have here only an issue involving the

power of a State to impose a regulatory restraint upon a

right which Congress bestowed on these Indians.” (95 S.Ct.

at p. 954.) Here, too, we are not involved in a dispute be-

tween the owner of private land and the Indians. And it is

noted that, although the nets were conceded!y upon private

land when seized, the fishing was undertaken by intervenor

from a spot known as Brooks Riffles from which his family

traditionally fished.

The State finally argues that the State has a right under

its police power to qualify the Indian fishing rights on the

Appendix 11

reservation in the interest of conservation and contends

that section 7155 is a proper conservation measure, The

State relies upon two cases involving Indian fishing rights

wherein the United States Supreme Court has narrowly

construed the fishing rights to permit State regulation of

the rights in the interest of conservation. (Puyallup Tribe

v. Dept. of Game (1967) 391 U.S. 392; Kake Village v. Egan

(1961) 369 U.S. 60.) Both cases, however, involved off-

reservation fishing and “[e]ven where reserved by federal

treaties, off-reservation hunting and fishing rights have

been held subject to state regulation.” (369 U.S. at p. 75.)

In both cases, also, the Indians-were fishing commercially

as well as for subsistence and regulation was seen as a

necessity to prevent extermination of the fish runs. No case

has come to our attention which has applied the power of

a state to regulate fishing on an Indian reservation in the

interest of conservation,

This court in Donahue v. Justice Court, supra, 15 Cal.

Cal.3d 557, a case involving fishing rights on the original

Hoopa Valley Reservation, in dictum, noted that “the state

is not precluded from exercising its general police power

under factual situations reasonably requiring the exercise

of such power,” and cited People v. Rhoades, 12 Cal.App.3d

720, in which the State was permitted to exercise its police

power on a reservation in enforcing a safety regulation

requiring removal of flammable growth adjacent to a build-

ing. The State contends that the danger to the salmon

from gill netting on the Klamath is such as to require State

intervention in the interest of preserving the fish. The

record on this argument is not persuasive. While it is

recognized that the line at which State intervention might

be necessary has not been drawn, several factors militate

against the success of an argument of necessity here. First,

12 Appendix

the problem with gill netting is simply that it increases the

number of fish taken from the river and the State does not

want the fish taken from the river before they can get to

the hatcheries or spawning grounds. Yet, the hatcheries are

over 100 miles from the mouth of the river and the State

only proposes restricting gill netting on the first 20 miles.

By statute it permits gill netting on the other sections.

(Fish & Game Code, § 12300, see Elser v. Gill Net Number

One, supra, 246 Cal.App.2d 30.) Apparently, the Indians,

if removed from their traditional fishing grounds, could

move a few miles away and gill net the salmon again before

they reached the hatcheries. The State’s argument for

necessity is also weakened by the fact that no showing has

been made that other conservation methods could not first

be tried. For example, sport fishing is still permitted below

the hatcheries and there is no evidence as to the extent of

this fishing. Testimony was introduced that the salmon runs

have decreased markedly in the last 30 to 40 years; the

Indians have been gill netting for subsistence for over a

century. Witnesses for the State had no figures on the size

of the catch through gill netting. There is no evidence of

substance in the record that would lead to the conclusion

that subsistence fishing by Indians is the cause of the de-

crease in the salmon runs and that regulation of this fishing

is the only means of solving the problem. Before the State

is permitted to make inroads into subsistence fishing by

Indians on their own reservation, all other conservation

methods should be exhausted.

The judgment is affirmed.

CERTIFIED FOR PUBLICATION.

Brown (H. C.), Acting P. J.

er

Appendiz 13

We concur:

a eee eed

Arnett v. 5 Gill Nets e

1 Civil 35783

*Retired Presiding Justice of the Court of Appeal, assigned by

the Chairman of the Judicial Council.

14 Appendiz

Court of Appeal of the State of California

in and for the

First Appellate District

Division Three

Jun 26, 1975

Court of Appeal—First App. Dist.

Clifford C. Porter, Clerk

No. 35783

G. Raymond Arnett, ete.,

Plaintiff and Appellant,

vs.

5 Gill Nets, etc.,

Respondent,

Raymond Mattz,

Intervenor and Respondent.

BY THE COURT:

The petition for rehearing in the above entitled cause is

hereby denied.

Dated Jun 26, 1975

Draper, P. J.

Appendix 15

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, Cailfornia 94102

Jul 23 1975

ee OE EEE EEE EES EEE SESE SESE SEES ESSE SEES ESSE HESS ESSE SSOSSSESSSSSE EEE EEE EEE ESSE EES

EEE EEE EEE EEE EEE EEE EEE ESSE OSES EEE SEE EEE HEE EEE SEES ESO H

ead

In re: 1 Civ. No. 35783

Arnett

vs.

5 Gill Nets

Respectfully,

G. E. BISHEL

Clerk

16 Appendiz

Appendix 2

Public Law 280, Chapter 505

AN ACT

To confer jurisdiction on the States of California, Minne-

sota, Nebraska, Oregon, and Wisconsin, with respect to

criminal offenses and civil causes of action committed or

arising on Indian reservations within such States, and for

other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled,

That chapter 53 of title 18, United States Code, is hereby

amended by inserting at the end of the chapter analysis pre-

ceding section 1151 of such title the following new item:

“1162. State jurisdiction over offenses committed by or

against Indians in the Indian country.”

Src. 2. Title 18, United States Code, is hereby amended

by inserting in chapter 53 thereof immediately after section

1161 a new section, to be designated as section 1162, as

follows:

“< 1162. State jurisdiction over offenses committed by or

against Indians in the Indian country

“(a) Each of the States listed in the following table shall

have jurisdiction over offenses committed by or against

indians in the areas of Indian country listed opposite the

name of the State to the same extent that such State has

jurisdiction over offenses committed elsewhere within the

State, and the criminal laws of such State shall have the

same force and effect within such Indian country as they

have elsewhere within the State:

Appendix 17

“State of Indian country affected

California ............ All Indian country within the State

Minnesota ............ All Indian country within the State, except

the Red Lake Reservation

Nebraska ............... All Indian country within the State

ee All Indian country within the State, except

the Warm Springs Reservation

Wisconsin _ ............ All Indian country within the State, except

the Menominee Reservation

“(b) Nothing in this section shall authorize the alienation,

encumbrance, or taxation of any real or personal property,

including water rights, belonging to any Indian or any

Indian tribe, band, or community that is held in trust by the

United States or is subject to a restriction against aliena-

tion imposed by the United States; or shall authorize regu-

lation of the use of such property in a manner inconsistent

with any Federal treaty, agreement, or statute or with any

regulation made pursuant thereto; or shall deprive any

Indian or any Indian tribe, band, or community of any right,

privilege, or immunity afforded under Federal treaty, agree-

ment, or statute with respect to hunting, trapping, or fishing

or the control, licensing, or regulation thereof.

“(e) The provisions of sections 1152 and 1153 of this

chapter shall not be applicable within the areas of Indian

country listed in subsection (a) of this section.”

Sec. 3. Chapter 85 of title 28, United States Code, is

hereby amended by inserting at the end of the chapter

analysis preceding section 1331 of such title the following

new item:

“1360. State civil jurisdiction in actions to which Indians

are parties.”

Sec. 4. Title 28, United States Code, is hereby amended

by inserting in chapter 85 thereof immediately after section

1359 a new section, to be designated as section 1360, as

follows:

18 Appendix

“$1360. State civil jurisdiction in actions to which Indians

are parties

“(a) Each of the States listed in the following table shall

have jurisdiction over civil causes of action between Indians

or to which Indians are parties which arise in the areas of

Indian country listed opposite the name of the State to the

same extent that such State has jurisdiction over other

civil causes of action, and those civil laws of such State that

are of general application to private persons or private

property shall have the same force and effect within such

Tndian country as they have elsewhere within the State:

“State of Indian country affected

California ............ All Indian country within the State

Minnesota _ ..........-- All Indian country within the State, except

the Red Lake Reservation

Nebraska _............ .. All Indian country within the State

aT All Indian country within the State, except

the Warm Springs Reservation

Wisconsin _ ............ All Indian country within the State, except

the Menominee Reservation

“(b) Nothing in this section shall authorize the aliena-

tion, encumbrance, or taxation of any real or personal prop-

erty, including water rights, belonging to any Indian or any

Indian tribe, band, or community that is held in trust by the

United States or is subject to a restriction against aliena-

tion imposed by the United States; or sgall authorize regu-

lation of the use of such property in a manner inconsistent

with any Federal treaty, agreement, or statute or with any

regulation made pursuant thereto; or shall confer-jurisdic-

tion upon the State to adjudicate, in probate proceedings or

otherwise, the ownership or right to possession of such

property or any interest therein.

“(e) Any tribal ordinance or custom heretofore or here-

after adopted by an Indian tribe, band, or community in the

Appendix 19

exercise of any authority which it may possess shall, if not

inconsistent with any applicable civil law of the State, be

given full force and effect in the determination of civil

causes of action pursuant to this section.”

Sec. 5. Section 1 of the Act of October 5, 1949 (63

Stat. 705, ch. 604), is hereby repealed, but such repeal

shall not affect any proceedings heretofore instituted

under that section.

Sec. 6. Notwithstanding the provisions of any Enab-

ling Act for the admission of a State, the consent of the

United States is hereby given to the people of any State

to amend, where necessary, their State constitution or

existing statutes, as the case may be, to remove any legal

impediment to the assumption of civil and criminal juris-

diction in accordance with the provisions of this Act:

Provided, That the provisions of this Act shall not become

effective with respect to such assumption of jurisdiction

by any such State until the people thereof have appro-

priately amended their State constitution or statutes as

the case may be.

Sec. 7. The consent of the United States is hereby

given to any other State not having jurisdiction with

respect to criminal offenses or civil causes of action, or

with respect to both, as provided for in this Act, to as-

sume jurisdiction at such time and in such manner as the

people of the State shall, by affirmative legislative action,

obligate and bind the State to assumption thereof.

Approved August 15, 1953.

20 Appendiz

Appendix 3

CALIFORNIA.

Hoopa Valley Reserve

By virtue of power vested in me by an act of Congress

approved April 8, 1864, and acting under instructions

from the Interior Department, dated at Washington City,

D. C., April 26, 1864, concerning the location of four tracts

of land for Indian reservations in the State of California,

I do hereby proclaim and make known to all concerned

that I have this day located an Indian reservation, to be

known and called by the name and title of the Hoopa

Valley Reservation, said reservation being situated on the

Trinity River, in Klamath County, California, to be de-

scribed by such metes and bounds as may hereafter be

established by order of the Interior Department, subject

to the approval of the President of the United States.

Settlers in Hoopa Valley are hereby notified not to make

any further improvements upon their places, as they will

be appraised ahd purchased as soon as the Interior De-

partment may direct.

Austin WILEY,

Superintendent Indian A ffairs

for the State of California.

Fort Gaston, Cau., August 21, 1864.

Executive Mansion, June 23, 1876.

It is hereby ordered that the south and west boundaries

and that portion of the north boundary west of Trinity

River surveyed, in 1875, by C. T. Bissel, and the courses

and distances of the east boundary, and that portion of

the north boundary east of Trinity River reported but

not surveyed by him, viz: “Beginning at the southeast

he es ee at

rm Ie eat a at

Appendiz 21

corner of the reservation at a post set in mound of rocks,

marked ‘H. V. R., No. 3’; thence south 1714 degrees west,

905.15 chains, to southeast corner of reservation; thence

south 7214 degrees west, 480 chains, to the mouth of Trin-

ity River,” be, and hereby are, declared to be the exterior

boundaries of Hoopa Valley Indian Reservation, and the

land embraced therein, an area of 89,572.43 acres, be, and

hereby is, withdrawn from public sale, and set apart for

Indian purposes, as one of the Indian reservations author-

ized to be set apart, in California, by act of Congress ap-

proved April 8, 1864. (13 Stats., p. 39.)

7 U.S. Grant.

Executive Mansion, October 16, 1891.

It is hereby ordered that the limits of the Hoopa Valley

Reservation in the state of California, a reservation duly

set apart for Indian purposes, as one of the Indian reser-

vations authorized to be set apart, in said State, by Act

of Congress approved April 18, 1864, (13 Stats., 39), be

and the same are hereby extended so as to include a tract

of country one mile in width on each side of the Klamath

River, and extending from the present limits of the said

Hoopa Valley reservation to the Pacific Ocean; Provided,

however, That any tract or tracts included within the

above described boundaries to which valid rights have

attached under the laws of the United States are hereby

excluded from the reservation as hereby extended.

Bens. Harrison.

22 Appendix

Appendix 4

27 Stat. 52 (1892):

CHAP. 120.—An act to provide for the disposition and

sale of lands known as the Klamath River Indian Reserva-

tion.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress assem-

bled, That all of the lands embraced in what was Klamath

River Reservation in the State of California, as set apart

and reserved under authority of law by an Executive order

dated November sixteenth, eighteen hundred and fifty-five,

are hereby declared to be subject to settlement, entry, and

purchase under the laws of the United States granting

homestead rights and authorizing the sale of mineral,

stone, and timber lands: Provided, That any Indian now

located upon said reservation may, at any time within one

year from the passage of this act, apply to the Secretary

of the Interior for an allotment of land for himself and, if

the head of a family, for the members of his family, under

the provisions of the act of February eighth, eighteen

hundred and eighty-seven, entitled “An act to provide for

the allotment of lands in severalty to Indians on the vari-

ous reservations, and to extend the protection of the laws

of the United States and the Territories over the Indians,

and for other purposes,” and, if found entitled thereto,

shall have the same allotted as provided in said act or any

act amendatory thereof: Provided, That lands settled

upon, improved, and now occupied by settlers in good faith

by qualified persons under the land laws shall be exempt

from such allotment unless one or more of said Indians

have resided upon said tract in good faith for four months

prior to the passage of this act. And the Secretary of the

Interior may reserve from settlement, entry, or purchase

en. mc lll

a IOC eee

Appendix 23

any tract or tracts of land upon which any village or settle-

ment of Indians is now located, and may set apart the

same for the permanent use and occupation of said village

or settlement of Indians. And any person entitled to the

benefits of the homestead laws of the United States who

has in good faith prior to the passage of this act, made

actual settlement upon any lands within said reservation

not allotted under the foregoing proviso and not reserved

for the permanent use and occupation of any village or

settlement of Indians, with the intent to enter the same

under the homestead law shall have the preferred right,

at the expiration of said period of one year to enter and

acquire title to the land so settled upon, not exceeding one

hundred and sixty acres, upon the payment therefor of

one dollar and twenty-five cents an acre, and such settler

shall have three months after public notice given that such

lands are subject to entry within which to file in the proper

land office his application therefor; and in ease of con-

flicting claims between settlers the land shall be awarded

to the settler first in order of time: Provided, That any

portion of said land more valuable for its mineral deposits —

than for agricultural purposes, or for its timber, shall be

entered only under the law authorizing the entry and sale

of timber or mineral lands: And provided further, That

the heirs of any deceased settler shall succeed to the rights

of such settler under this act: Provided further, That the

proceeds arising from the sale of said lands shall con-

stitute a fund to be used under the direction of the Secre-

tary of the Interior for the maintenance and education of

the Indians now residing on said lands and their children.

Approved, June 1892.

24 Appendiz

Appendix 5

California Fish and Game Code $7155: Permit to Yurok

Indians to take fish for subsistence; rights under permit.

Notwithstanding any other provision of this code, Cali-

fornia Indians who are bona fide registered members of

the Yurok Indian Tribe may take fish, for subsistence

purposes only, from the Klamath River between the mouth

of that river and the junction of Tectah Creek with it,

exclusive of tributaries, without regard to seasons, under

the following conditions:

(a) Upon application therefor, the department shall

issue to any Yurok Indian who is listed on the register of

the Yurok Tribal Organization, as furnished to the depart-

ment, a renewable, nontransferable permit to take fish pur-

suant to this section for a period of one calendar year. Any

Indian of the Yurok tribe while taking fish pursuant to this

section shall have upon his person such valid permit, and

shall display it upon the request of any duly authorized

officer.

(b) Hand dip nets, and hook and line only may be used

for taking fish pursuant to this section.

(c) Pursuant to this section not more than three trout

or salmon or combination thereof, or more than one stur-

geon, may be taken in any one day. There is no bag limit

on any other fish.

(d) No Yurok Indian while fishing pursuant to this sec-

tion may be accompanied by any person who does not pos-

sess a valid permit as prescribed by this section. It is

unlawful for anv person who does not hold such permit

to accompany any Yurok Indian who is taking fish pur-

suant to this section.

(e) The sale of anv fish taken under the provisions of

this section shall constitute cause for permanent revoca-

tion by the commission of the permit held by the person

making the sale. (Stats.1957, ¢. 456, p. 1419, § 7155.)

Ot NO ee me ee cee <r se

Appendix 25

Appendix 6

(Original lodged with Clerk of U.S. Supreme Court)

AFFIDAVIT OF DUNCAN SNELL

I, DUNCAN SNELL, after being duly sworn and deposed,

state:

I am a Patrol Captain for the State of California, Depart-

ment of Fish and Game, and in my capacity as Patrol Cap-

tain for the Fish and Game, I supervise the activities of

the Wildlife Protection Officers throughout Humboldt, Del

Norte and Trinity Counties, inclyding the Lower 20 miles of

the Klamath River. I have been in charge of Humboldt and

Del Norte Counties including the Lower 20 miles of the

Klamath River since March 13, 1972.

Since the decision of the Court of Appeal on May 27,

1975, the California Department of Fish and Game has not

attempted to regulate fishing by Indians on the Lower 20

miles of the Klamath River, pending a final decision in the

ease by higher appellate authority. The Yurok tribe itself

does not have a tribal organization as such, and there ap-

pears to be no attempt by tribal authority to regulate fishing

by Indians on that portion of the river. As a result of such

lack of regulation by State or tribal authority, a situation

has developed which, in my opinion, threatens the future

migration of salmon into the entire Klamath River system.

Since the decision of the Court of Appeal, there have been

many instances in which a comparatively small number of

Indians have deliberately wasted quantities of fish which

were caught by gill nets. For instance, a report from a re-

liable source indicates that six truck-loads of spoiled salmon

were dumped by a few Indians at the south bank of the river

near its mouth. Another report was received that a truck

load of fish was dumped by Indians in the Klamath dump.

26 Appendiz |

Our office has received many other reports of spoilage an

wasteage of fish.

Also, since the Court of Appeal’s decision, many Indians

have begun to catch fish for patently commercial purposes.

A common practice has developed whereby certain Indians,

who now operate gill nets in the river, harass and intimidate

non-Indian fishermen who are limited to taking fish with a

rod-and-reel. This harassment takes the form of physical

threats, and claims that the Indians now “own” the river

and have the right to exclude non-Indians froin fishing in

the river. At the end of the day, these same Indians then

proceed to non-Indian camping areas, and offer to sell the

fish at the market rate of $.80 to $1.50 per pound, On at least

one occasion, a fish stand was set up by Indians on a river

bar, and more than 100 salmon were sold on a first come,

first serve basis at $1.00 per pound. In addition, we have

reason to believe that vast amounts of fish are now being

sold off the reservation by certain Indians to retailers.

Another problem that has developed since the Court of

Appeal’s decision has been a growing threat of physical

violence. Certain Indians are reliably reported to be carry-

ing firearms, and have threatened to shoot any State official

who seizes the Indians’ nets. Indians have even threatened

other Indians over the best fishing areas, and reports have

been received that such Indians have displayed guns, knives,

and machetes in a threatening manner. On one occasion, an

Indian physically assaulted a California fishing official with

his fists. :

Perhaps the worst situation to develop since the Court

of Appeal’s decision, however, has been the growing threat

to the fishery itself. Many Indians are now using gill nets

which measure over 100 feet in length with a weighted

bottom line and a floated or cork top line. This device allows

SL A NOL ee

tw

Appendix 27

no escape by salmon which come into the net. This is a

highly efficient and productive method of taking fish. The

nets are so numerous that they impede the progress of those

who go down the river in boats. As a result of this situation,

it is my opinion that the fishery on the lower Klamath River,

which for several years has been one of the best producers

of salmon and steelhead in the nation, is now in jeopardy

as a result of the Court of Appeal’s decision.

Finally, we have also been informed that there is a divi-

sion of opinion within the Yurok community over the fishing

practices of the comparatively small number of Indians who

are engaged in the above practites, and that much of the

Yurok community opposes these practices. ,

/s/ Duncan SNELL

DUNCAN SNELL

STATE OF CALIFORNIA

COUNTY OF HUMBOLDT Iss,

I, DUNCAN SNELL, named in the foregoing instrument

certify under penalty of perjury, that every statement or

thing contained therein is true to the best of my knowledge

and belief.

/s/ Duncan SNELL

Subscribed and sworn to before me

this 10th day of September, 1975.

/s/ Catuertne C. Liss

Notary Public

in and for the County of Humboldt,

State of California.

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