Opposition Brief — Oregon v. Settler

Supreme Court, U.S.

BILLED -

MAY 2 We

>

No. 86-1414

in the Supreme Cour

of the United States

OCTOBER TERM, 1986

STATE OF OREGON,

Petitioner,

v.

MARY SETTLER,

CARL SETTLER, and

RANDY ALVIN SETTLER,

Respondents.

On Petition for Writ of Certiorari

to the Court of Appeals

of the State of Oregon

RESPONDENT’S BRIEF IN OPPOSITION

LAWRENCE MATASAR

Hoffman, Matasar & Glaeser

1020 S.W. Taylor, Suite 330

Portland, Oregon 97205

Phone: (503) 222-9830

Counsel for Petitioners

QUESTION PRESENTED

May a state obtain a felony conviction for violation of

state fishing laws against a member of an Indian tribe with

tribal fishing rights without proving a conservation necessity

at trial?

TABLE OF CONTENTS

Page

ee eee cece eR eae phn ie ese ee eenn eee i

Neel eka hoses hen wes eek naeaeeesas iii

i sci cah ea gabe eked ebisecebbeerssears Vv

cc hep ed cde see esas nach aen vasa 1

Ce cack nbee sees tena denecabscaneeesesse 1

Reasons Why the Petition Should be Denied ............... 1

I. A. The state/tribal conflict, which was a significant

reason for the treaties between the federal govern-

ment and the tribes, continues to exist between the

State of Oregon and the Yakima Nation ............. 4

B. The Conservation Requirement is based on judicial

construction of the 1855 treaty itself and the inten-

tions of the parties at the time it was signed. It is

therefore not subject to revision when the state/

tribal conflict is temporarily in abatement ........... 9

C. The State of Oregon is incorrect in asserting that

adoption of its argument would make it easier for

state authorities to prosecute fishing violations

against Indians with tribal fishing rights ........... 11

II. The conservation requirement exists in state criminal

courts independently of any determination of whether a

weaaty Indian is fishing in violation of tribal regula-

ES oe Se en ae ar 12

A. A tribe’s authority to regulate the treaty fishing

rights of its members does not create a state court

power to convict treaty Indians without the proof of

conservation necessity, even if the state court were

to find that an Indian was fishing in violation of

EE PE OLE TTC TET POT eee EET 12

B. Treaty Rights Protect Individual Tribal Members ... 13

C. State Courts are Not Appropriate Interpreters of

SU UU EID ccc c cc cccccescccsens 14

lil

III. This case presents an inappropriate factual record to

address the issues raised in the petition ............... 16

A. There was no proof at trial that these defendants

violated any tribal regulations ...............2+45- 16

B. There was insufficient evidence presented at trial

that the fish sold by the defendants were taken from

ee CI OD nb ka cae Scnndcedustnaneaavases 16

| en ok kkk RMA eae eh areas nee ee 17

lV

TABLE OF AUTHORITIES

Page

Cases Cited

Antoine v. Washington, 420 U.S. 194 (1975) ........... 2,6, 11

McCalanahan v. Arizona State Tax Commission, 411 U.S.

SNE 42 oo cect en xdcck seus ee eueeenseuenencs 14

Puget Sound Gill Netters Ass’n v. United States District

Court, 573 F.2d 1123 (9th Cir. 1978), affirmed 443

SR IE ins ck kv deed ankbeceneeecepaesues 1, 8, 15

Puyallup Tribe v. Dep’t of Game, 391 U.S. 392 (1968)

NE va vk bean kaaeaGhesaeheasataeeee 2,6, 10

Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974) .......... 12, 13

State v. Gowdy, 1 Or. App. 424, 462 P.2d 461 (1969), reh.

Ce 5 ck 68 rw kh eat hohe eae 12, 15

Tulee v. Washington, 311 U.S. 681 1942) ............. 2, 6, 10

United States v. Oregon, 769 F.2d 1410 (9th Cir. 1985) ....... 9

United States v. Washington, 384 F.Supp. 312, aff'd 520

F.2d 676 (9th Cir. 1975), cert denied, 423 U.S. 1086,

reh denied, 424 U.S. 978 (1976) ............... 7, 13, 15

United States v. Winans, 198 U.S. 371 (1905) .............. 14

Washington v. Fishing Vessel Ass’n, 443 U.S. 658 (1979) ..... 7

Washington v. Washington State Commercial Passenger

Fishing Vessel Ass’n, 443 U.S. 658 (1979) ........... 5,8

Washington Game Dep’t v. Puyallup Tribe, 414 U.S. 44 (1973) 6

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) ............ 5

Statutory and Administrative Provisions

SR Bre SD oid hearin ede dccanctcbeeseeeasenae 1,6

yes tw ee SEs re rr rr 5

PPT Teer rrr er ee rr. nee 16

iB RO RR SS & BPP erererrerrrrer err eres 1, 4

Other Authorities

Professor Charles Wilkinson, American Indian, Time and

Re Se) kok ane ctbdeticeeubedaceseuaseeess 1,4

J. Madison, Journal of the Federal Convention (E. Scott ed.

SSD, Mido scus ne dse denn canada es 6 ek 4

Wilkinson & Conner, The Law of the Pacific Salmon Fish-

ery: Conservation and Allocation of a Transboundary

Common Property Resource, 32 U. Kan. L. Rev. 17

CE Fe sabecdweskéossidisasersecbesenassehavece> 7

vi

1

STATEMENT OF THE CASE

Facts

Petitioner has accurately stated the stipulated facts under

which this case was tried (pp. 4-5). However, as it has

throughout this case, petitioner failed to cite tribal regulations

that prohibited the specific acts committed by respondents:

selling or possessing food fish out of season rather than the act

of fishing itself.

REASONS WHY THE PETITION

SHOULD BE DENIED

Even before the Constitution was adopted, Native Ameri-

can Indians were particularly wary of expanding state powers.

The Framers of the Constitution intended that the federal

government, not the states, would regulate Indian matters.

U.S. Const. art. I, § 8, cl. 3. When treaties were signed between

the federal government and the Pacific Northwest Indian

tribes, it was intended that the tribes’ commercial fishing

rights would be protected against state interference by the

“Great Father” in Washington. Wilkinson, American Indians,

Time and the Law (1987).

In the years following the Treaty with the Yakimas, 12

Stat. 951 (1855), actions by the states resulted in substantially

reduced Indian fishing. There has been frequent litigation in

this area. In countless cases, continuing uy: to the present, the

federal government assisted the Indians in asserting their

treaty rights against the states of Oregon and Washington,

infra. On several occasions, the states openly resisted federal

court orders. See e.g., Puget Sound Gill Netters Ass’n v. United

States District Court, 573 F.2d 1123, 1126 (9th Cir. 1978),

affirmed 443 U.S. 658 (1979).

In 1942, this Court construed the Yakima Treaty as

requiring that, before a state can obtain a conviction in state

court against a treaty Indian for unlawful fishing at a site

2

covered by the treaty, the state must show that its regulations

“are necessary for the conservation of fish.”” Tulee v. Wash-

ington, 311 U.S. 681, 684 (1942). Subsequently, similar lan-

guage in other treaties has been interpreted to require proof of

a conservation necessity before a state can enforce its regula- ‘

tions against treaty Indians. Puyallup Tribe v. Dep’t of Game,

391 U.S. 392 (1968) (Puyallup I) (interpreting the Treaty of

Medicine Creek) and Antoine v. Washington, 420 U.S. 194

(1975) (interpreting treaty-like Congressional legislation).

This principle has become known as the conservation require-

ment.

There is no support for petitioner’s legal argument that a

temporary abatement of what petitioner calls “the state/tribal

conflict” eliminates the conservation requirement, even if a

state court finds that an Indian was fishing in violation of

tribal regulations. Moreover, if there were legal support for

such an argument, it would be inapplicable to the instant case

because the state/tribal conflict between the State of Oregon

and the Yakima Nation remains very serious to the present

day. And more importantly, petitioner has never shown that

respondents, who were charged in state court with possession

and sale of food fish out of season, have actually violated any

Yakima tribal regulations, which only prohibit the act of

fishing out of season.

Accordingly, the writ should be denied.

I.

A. The state/tribal conflict, which was a significant

reason for the treaties between the federal govern-

ment and the tribes, continues to exist between the

State of Oregon and the Yakima Nation.

B. The Conservation Requirement is based on judicial

construction of the 1855 treaty itself and the inten-

tions of the parties at the time it was signed. It is

a

3

therefore not subject to revision when the state/

tribal conflict is temporarily in abatement.

C. The State of Oregon is incorrect in asserting that

adoption of its argument would make it easier for

state authorities to prosecute fishing violations

against Indians with tribal fishing rights.

INTRODUCTION

The State of Oregon, in its Petition for Writ of Certiorari,

asserts that the “conservation requirement” — the mandate

from this Court that a state must prove a conservation

necessity before enforcing its fishing regulations against

treaty Indians — is a flexible, court created doctrine based on

the continuing historical conflict between this nation’s Indian

tribes and the states. Petitioner then maintains (pp. 8-11) that

such conflict no longer exists between it and the Yakima

Indian Nation. Petitioner concludes that when the “state/

tribal conflict” does not exist, and when a State criminal court

finds that an Indian is fishing in violation of tribal regula-

tions, the state can enforce its fish and game laws against the

treaty Indian without the need to show conservation neces-

sity. Furthermore, petitioner asserts that adoption of its

position would ease the burden on the local authorities that

prosecute Indians for fishing violations.

This argument fails on each of its central premises. First,

it fails on the facts: there has not been a significant reduction

in the prolonged conflict between the State of Oregon and the

Yakima Indian Nation. Second, it fails on the law: a tempo-

rary relaxation in tensions between one state and a particular

tribe is irrelevant to the conservation requirement, which is

based on judicial construction of the Indian treaties them-

selves. And third, it fails in its assumption (pp. 8, 14) that it

would result in significant savings of resources at the local

prosecution level.

————

4

A. The state/tribal conflict, which was a significant

reason for the treaties between the federal govern-

ment and the tribes, continues to exist between the

State of Oregon and the Yakima Nation.

(1). Historical Background

In the first heading of the Petition for Certiorari, under

the section REASONS FOR ALLOWANCE OF WRIT,

petitioner states: “The state/tribal conflict which in prior

cases prompted this Court to require states to prove conserva-

tion necessity does not exist here.” (p. 8). This statement, the

linchpin of the State’s argument, is incorrect.

In order to examine the current relationship between the

State of Oregon and the Yakima Indian Nation, it is necessary

to briefly review what petitioner has called the “state/tribal

conflict.”

Historically, one of the central reasons that Native Ameri-

can Indian tribes entered into treaties with the federal govern-

ment was to obtain protection against the emerging powers of

the states. Professor Charles Wilkinson, in American Indians,

Time and the Law, 17 (1987), points out that “whatever the

motives and whenever the era, presidents, commissioners, and

Indian agents repeatedly reassured treaty tribes that the

Great Father in Washington would secure the Indian people

in their newly demarcated lands against the rising tide of

white civilization.”

The primary role of the federal government vis-a-vis the

states in Indian affairs was specifically stated in the Constitu-

tion: ““The Congress shall have Power * * * To regulate Com-

merce with foreign Nations, and among the several States,

and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.

James Madison, the principal writer of the Indian Com-

merce Clause, argued that this provision, by vesting the

primary power over Indian affairs in the federal government,

5

would eliminate problems confronted during the period of the

Articles of Confederation, when the states claimed authority

over Indian relations and lands. See, e.g., J. Madison, Journal

of the Federal Convention 190, 549 (E. Scott ed. 1898).

The Constitutionally mandated inferior role of the states

with regard to Indian affairs was affirmed early in the juris-

prudence of this Court. In Worcester v. Georgia, 31 U.S. (6

Pet.’ 515, 594 (1832), Chief Justice John Marshall wrote that |

under the Indian Commerce Clause, the federal government

“has the exclusive regulation of intercourse with the Indians;

and so long as this power shall be exercised, it cannot be

obstructed by the state.”

The role of protector of the Indians against state power

was specifically assumed by the federal government in treaty

negotiations in the mid-Nineteenth Century. The Governor of

the Washington Territory, Isaac Stevens, who negotiated the

treaties with the Northwest’s Indian tribes, explained a sim-

ilar fishing provision to tribal members gathered at Point-No-

Point:

“Are you not my children, and also children of the

Great Father? What will I not do for my children, and

what will you not for yours? Would you not die for

them. * * * This paper is such as a man would give to

his children and I will tell you why * * *. This paper

secures your fish. Does not a father give food to his

children?”

Washington v. Washington State Commercial Passenger Fish-

ing Vessel Ass’n, 443 U.S. 658, 667, n. 11 (1979).

In the treaty negotiations, the Northwest tribes were

particularly concerned that their commercial fishing rights be

protected. The Attorney General of Oregon has stated that

“the Indians who fished the Columbia river historically used

their catch for barter as well as for subsistence and ceremonial

purposes. Presumably, the treaties were entered into with the

expectation that the Indians would be permitted to barter or

sell what they caught.” 36 Op. Ore. Att’y Gen. 531, 534 (1973).

6

This Court has recognized the importance that hunting

and fishing rights played in the Treaty with the Yakimas, 12

Stat. 951 (1855). In Tulee v. Washington, 311 U.S. 681, 684

(1942) the Court discussed the treaty negotiations:

“From the report set out in the record before us of the

proceedings in the long council at which the treaty

agreement was reached, we are impressed by the strong

desire the Indians had to retain the right to hunt and

fish in accordance with the immemorial customs of

their tribes.”

Tulee held that a state could regulate merely the time and

manner of Indian fishing at the “usual and accustomed

places”, and then only if the regulations were “indispensible

to the effectiveness of a state conservation program.” 315 U.S

at 685. This approach was affirmed in Puyallup Tribe v. Dep «

of Game, 391 U.S. 392 (1968) (Puyallup I), Washington Game

Dep't v. Puyallup Tribe, 414 U.S. 44 (1973) (Puyallup II), and

Antoine v. Washington, 420 U.S. 194 (1975).

Thus, the historical record is clear that the “state/tribal

conflict” was a central basis for negotiation of the treaty

provision in 1855 guaranteeing the Yakimas “the right of

taking fish at all usual and accustomed places.” Article 3 of

the Treaty with the Yakimas, 12 Stat. 951 (1855).

(2). Recent legal history (1970s and 1980s)

The State argues that the above historical conflict

between the tribes and the states no longer applies to its

relations with the Yakimas: “In this instance, as a result of

federal court decision and negotiated compacts approved and

supervised by the court, the state and the tribes are in

agreement, not conflict” (p. 7). The State of Washington has

filed a Brief as Amicus Curiae in support of Oregon’s position.

Yet, their argument is without foundation: this conflict has

extended to the present.

In the years after the signing of the treaty in 1855, the

states of Oregon and Washington acted steadily to decrease

7

the fish taken by members of the Yakima Nation. It was only

the intervention of the federal courts, often at the request of

the United States government, that aliowed the Yakimas to

exercise the fishing rights their ancestors intended to preserve

when the treaty was signed, infra. The landmark fishing rights

decision in the Pacific Northwest was United States v. Wash-

ington, 384 F.Supp. 312, aff'd 520 F.2d 676 (9th Cir. 1975), cert

denied, 423 U.S. 1086, reh denied, 424 U.S. 978 (1976). The

district court’s opinion became known as the Boldt decision,

named after the District Judge who presided over this pro-

tracted litigation.

This decision, which allocated equal portions of the fish

runs between Indians and non-Indians, was of such critical

importance that it has been measured statistically:

“In 1971, 1972, and 1973 (the last 3 years before the

Boldt decision), for example, Indians harvested 5%,

7.5%, and 6.5%, respectively, of all fish taken in Puget

Sound. In 1980 and 1981 (the last years for which final

figures are available), Indians took 55% and 39%,

respectively. The Indian share of fish harvested on the -

Columbia has also increased substantially.”

Wilkinson & Conner, The Law of the Pacific Salmon Fishery:

Conservation and Allocation of a Transboundary Common

Property Resource, 32 U. Kan. L. Rev. 17, 98 n.438 (1983).

Contrary to the posture of the State of Oregon in its

Petition for Certiorari, and contrary to the position of the

State of Washington in its Amicus brief in support of Oregon’s

Petition, both states have vigorously fought against tribal

fishing rights whenever and wherever they could. They have

fought the tribes, supra. They have fought the United States

government, which has acted both as trustee for the tribes and

on its own behalf in litigation to support Indian fishing rights.

See e.g., Washington v. Fishing Vessel Ass’n., 443 U.S. 658, 669

(1979).

8

The states have even fought the federal courts, thereby

suffering stinging judicial criticism. For example, the United

States Court of Appeals for the Ninth Circuit noted that

“Except for some desegregation cases [citations omitted], the

district court has faced the most concerted official and private

efforts to frustrate a decree of a federal court witnessed in this

century.” Puget Sound Gill Netters Ass’n v. United States

District Court, 573 F.2d 1123, 1126 (9th Cir. 1978), affirmed

443 U.S. 658 (1979). Oregon United States District Court

Judge James Burns, sitting on the Ninth Circuit by designa-

tion in United States v. Washington, supra, wrote a concurring

opinion, stating in part:

“The record in this case, and the history set forth in

the Puyallup and Antoine cases, among others, make it

crystal clear that it has been the recalcitrance of

Washington State officials (and their vocal non-

Indian commercial and sports fishing allies) which

produced the denial of Indian rights requiring inter-

vention by the district court. This responsibility

should neither escape notice nor be forgotten.”

520 F.2d at 693.

Frequent, intensive federal litigation over Indian fishing

rights in the Pacific Northwest has continued in the years

after Judge Boldt’s decision in United States v. Washington,

supra. Petitioner correctly states that the tribes and the states

are currently involved in a court-ordered plan to jointly

manage the Columbia River fishery. However, petitioner is

completely wrong in stating that the existence of such a plan

has eliminated tribal/state conflict.

The courts’ hope that judicially mandated joint regulation

of the Columbia River fishery would eliminate tribal/state

conflict was a noble one. Yet, it has obviously not yet reached

fruition. The numerous, recent, Indian fishing rights cases

entitled “United States v. Oregon” listed in Oregon’s Petition

are in themselves some evidence of the serious, continuing

9

conflict in this area. As recently as August of 1985, the Ninth

Circuit affirmed a district court finding “that the fishery

regulations promulgated by the Columbia River compact

violated the Indians’ tribal fishing rights.’’ United States v.

Oregon, 769 F.2d 1410, 1412 (9th Cir. 1985) (emphasis added).

Perhaps the clearest statement of the current situation

was given by Yakima Nation Tribal Chief Levi George, who

testified at a hearing in the instant case. Tr. 12/21/84 at

185-202. Chief George has taken part in fishery negotiations

with Oregon and Washington authorities, as well as with

officials from the federal government and Canada. He suc-

cinctly summarized the tribal members’ current view of the

state’s regulations: “they give us fishing when there’s no

fishing.” Tr. 12/21/84 at 191.

Given this historical record, petitioner is clearly wrong in

asserting that the state/tribal conflict no longer exists

between the State of Oregon and the Yakima Nation. Since

the alleged non-xistence of this conflict is one of the peti-

tioner’s central reasons for allowance of the writ, the writ

should be denied.

B. The Conservation Requirement is based on judicial

construction of Indian treaties themselves and the

intentions of the parties at the time they were

signed. It is therefore not subject to revision when a

particular state/tribal conflict is temporarily in

abatement.

The second prong of petitioner’s first reason for allowance

of the writ is its analysis that this Court’s decisions on the

conservation requirement were based on state/tribal conflicts

existing at the time of the prosecutions in those cases. This

analysis is incorrect: the conservation requirement is founded

on this Court’s interpretation of the treaties themselves,

based upon the intentions of the parties when the treaties

10

were signed. Thus, even if the state/tribal conflict between a

particular state and a tribe were temporarily in abatement, the

state would still be required to prove a conservation necessity

before enforcing its criminal fishing laws against treaty Indi-

ans.

The “conservation requirement” was first announced by

this Court in Tulee v. Washington, 311 U.S. 681 (1942). Tulee

reversed a Washington state court conviction of a Yakima

tribal member for catching salmon with a net without first

having obtained a state license. Sampson Tulee had unsuc-

cessfully challenged the application of the statute to him in

the state trial court and in the Washington Supreme Court on

the ground that it was repugnant to the Yakima treaty. 315

U.S. at 682. In arguments to this Court, both the State of

Washington and the defendant relied upon their construc-

tions of the treaty. Jd. The Supreme Court, in a unanimous

opinion by Justice Black, based its holding squarely upon the

treaty itself:

“We think the state’s construction of the treaty is too

narrow and the appellant’s too broad; that while the

treaty leaves the state with power to impose on Indians

equally with others such restrictions of a purely reg-

ulatory nature concerning the time and manner of

fishing outside the reservation as are necessary for the

conservation of fish, it forecloses the state from charg-

ing the Indians a fee of the kind in question here.”

315 U.S. at 684. Significantly, the Tulee Court did not rely

upon the factual conditions at the time of its decision, but

upon the conditions existing at the time the treaty was signed:

“It is our responsibility to see that the terms of the

treaty are carried out, so far as possible, in accordance

with the meaning they were understood to have by the

tribal representatives at the council and in a spirit

which generously recognizes the full obligation of this

nation to protect the interests of a dependent people.”

315 U.S. at 684-685. Also see Puyallup Tribe v. Dep’t of Game,

391 U.S. 392 (1968) (Puyallup J) (interpreting the Treaty of

11

Medicine Creek) and Antoine v. Washington, 420 U.S. 194

(1975) (interpreting treaty-like Congressional legislation).

Because the conservation requirement is based upon judi-

cial construction of the Treaty with the Yakimas of 1855 and

the conditions existing at that time and place, a temporary

cessation of the state/tribal conflict in the 1980s, even if such

a cessation did exist, cannot support that requirement.

C. The State of Oregon is incorrect in asserting that

adoption of its argument would make it easier for

state authorities to prosecute treaty Indians for

fishing violations.

In its Petition, the State of Oregon asserts (pp. 8, 14) that

the conservation requirement is a burden at the local prosecu-

tion level. Yet, Petitioner does not support this assertion with

citations either to the record or to legal authorities.

But in any event, it is clear that the position urged by

petitioner in lieu of the conservation requirement would be

equally burdensome to local prosecutors and courts. The

determination of the first prong of the petitioner’s test (p. 9),

whether “the kind of state/tribal conflict present in the

Puyallup cases and Antoine” exists in a particular case, would

require a delicate analysis by the state trial court of the

current relations between the criminal defendant’s tribe and

the prosecuting state. Litigation of this delicate concept would

likely involve as great an expenditure of local resources to

prove favorable state/tribal relations as are now involved in

proving conservation necessity.

The second part of petitioner’s analysis requires a deter-

mination by the state court of whether the Indian defendant

was fishing in violation of tribal regulations. The interpreta-

tion of tribal regulations by state courts is inconsistent with

one of the Indians’ pfimary purposes in negotiating the

treaties: protection from state powers. Section I (A), supra.

12

Therefore, petitioner’s approach is as unworkable as it is

legally unsupportable and the writ should be denied.

II.

The conservation requirement exists in state criminal

courts independently of any determination of whether

a treaty Indian is fishing in violation of tribal regula-

tions.

A. A tribe’s authority to regulate the treaty fishing

rights of its members does not create a state court

power to convict treaty Indians without the proof of

conservation necessity, even if the state court were

to find that an Indian was fishing in violation of

tribal regulations.

Petitioner seeks to deny a significant protection of the

treaties, the conservation requirement, to all Indians charged

in state court who are found to be fishing in violation of their

own tribe’s fishing regulations. Throughout this litigation,

petitioners have been unable to cite a single decision from any

jurisdiction in direct support of this analysis other than State

v. Gowdy, 1 Or. App. 424, 462 P.2d 461 (1969), reh. denied

(1970).

Instead of court decisions, the petitioner has cited a 1962

Memorandum Opinion from the Department of Interior and

an amicus brief filed in 1969 (pp. 12-13). Petitioner’s argu-

ment is conceptually based on the broad statement that treaty

rights are vested in the tribe. Respondents have no quarrel

with this as a general proposition of Indian treaty law, which

allows the tribes to govern their own members in tribal courts.

Yet, this general principle cannot be extended to deny treaty

protections in state courts even if the state court were to find

that an Indian was fishing in violation of tribal regulations.

The leading case on the question of the tribe’s power to

regulate its own members is Settler v. Lameer, 507 F.2d 231

ftiieencnarin nom Se

13

(9th Cir. 1974), which was specifically relied upon by peti-

tioner (pp. 12-13). However, Settler v. Lameer is in clear

opposition to petitioner’s claims that such tribal regulatory

authority can be used to deny the conservation defense to

treaty Indians in state court.

The Settler opinion quoted from Puyallup I that:

“The manner of fishing, the size of the take, the

restriction of commercial fishing, and the like may be

regulated by the State in the interests of conservation,

provided the regulation meets appropriate standards

and does not discriminate against the Indians.”

507 F.2d at 237 (emphasis in Settler). Moreover, after clearly

emphasizing the state’s limited authority to regulate commer-

cial fishing only “in the interests of conservation”, Settler

states that:

“once the limits of state authority have been reached

there remain significant areas of fishing activities

which are not necessarily subject to state regulation.

Among these activities particularly susceptible to the

tribe are: (1) the use of accustomed fishing places; ***

(4) the time of taking fish ***. Appellees [The Yakima

tribal police chief and the Chief Judge of the Yakima

Tribal Court] had the authority to arrest and prosecute

tribal members for violation of the Tribal fishing

regulations.”

507 F.2d at 237-8 (emphasis added). Therefore, Settler was

addressed solely to tribal regulation “once the limits of state

authority have been reached.” It cannot support petitioner’s

approach, where tribal regulations are used to greatly expand

the longstanding limits of state authority inherent in the

conservation requirement.

B. Treaty Rights Protect Individual Tribal Members

When tribal treaty rights and individual treaty rights are

in conflict, courts have often protected the individual Indian.

Judge Boldt, in U.S. v. Washington, supra, plainly stated that

14

fishing rights are personal rights held and exercised by indi-

vidual tribe members. 384 F. Supp. at 337. Judge Boldt based

this conclusion on the Supreme Court’s earlier pronounce-

ment in U.S. v. Winans, 198 U.S. 371, 381 (1905):

“They [the Treaty reservation of fishing rights]

reserved rights, however, to every individual Indian, as

though named therein. They imposed a servitude upon

every piece of land as though described therein.”

And more recently, this Court acknowledged that Indian

treaties conferred individual rights to the tribe’s members.

McCalanahan v. Arizona State Tax Commission, 411 U.S. 164

(1973). There, the question before the Court was whether a

state may tax a reservation Indian for income wholly derived

from reservation activity. The lower Court found it irrelevant

whether an individual Indian’s rights were being infringed,

but focused only on whether the tax infringed the Tribe’s right

to be self-governing. The Supreme Court rejected the lower

Court’s restrictive view and found the appellant’s rights were

violated:

“To be sure, when Congress has legislated on Indian

matters, it has, most often “salt with the tribes as

collective entities. But those entities are, after all,

composed of individual Indians, and the legislation

confers individual rights.”

Td. at 181.

Therefore, the treaties have conferred specific rights on

individual tribal members. The arguments put forth by peti-

tioner in support of tribal treaty rights merely support the

tribe’s own attempts to regulate its members. Petitioner has

not shown that tribal regulations, as interpreted by state

criminal courts, can deny important federal treaty rights to an

individual tribal member.

C. State Courts are Not Appropriate Interpreters of

Indian Tribal Regulations

od

15

Under petitioner’s approach, in every prosecution for

violation of fishing laws against treaty Indians, the state

criminal court would be required to determine whether the

defendant had violated any tribal fishing regulations. Such

interpretation of tribal regulations by a state court is not

appropriate given the historical conflict between the tribes

and the states, supra.

Furthermore, it is remarkable that such an approach

would be suggested by the States of Oregon and Washington,

given their history of fighting against Indian fishing rights,

supra, given the comments of the Ninth Circuit in comparing

state efforts to frustrate Indian fishing rights to similar efforts

in desegregation cases, Puget Sound Gill Netters Ass’n v.

United States District Court, 573 F.2d 1123, 1126 (9th Cir.

1978), affirmed 443 U.S. 658 (1979), and given Judge Burns’s

statement that the recalcitrance of Washington State officials

which produced denial of Indian fishing rights “should neither

escape notice nor be forgotten.”’ United States v. Washington,

supra.

The petitioner’s approach is particularly troublesome in

the instant case, where the state was seeking to convict the

three respondents of 100 years worth of felony offenses for

violations of unspecified tribal regulations that were neither

noted in the indictment nor at trial.

Finally, the comments of the Yakima Nation tribal pros-

ecutor at a hearing in the instant case are appropriate: “it’s

difficult for me to understand why a sovereign would want to

enforce another sovereign’s regulations.” Tr. 12/21/84 at 223.

For these reasons, petitioner’s approach, whereby the

state criminal court would construe tribal regulations in order

to deny tribal members important treaty fishing rights, has

never been adopted by any court except for the Oregon Court

of Appeals in Gowdy, supra. Now that Gowdy has been

overruled, sub silentio, in the instant case, the courts of all 50

16

states are in agreement. Therefore, there is no reason for this

Court to allow the writ.

III.

This case presents an inappropriate factual record to

address the issues raised in the petition.

A. There was no proof at trial that these defendants

violated any tribal regulations.

At trial, the prosecution did not attempt to prove conser-

vation necessity, but instead relied upon asserted violations of

tribal regulations. However, as was pointed out by the defen-

dants both at trial (Tr. 2/5/85, pp. 26-27), and before the

Oregon Court of Appeals (App. Br. pp. 27-28), the prosecution

never cited any specific tribal regulations upon which they

were relying. More importantly, of the numerous tribal regula-

tions introduced at trial (C.R. 171-172, Exhibit “A”), none are

addressed to the specific acts committed by the defendants:

possessing or selling fish out of season. Since the tribal

regulations are only addressed to the act of fishing itself, the

prosecution never proved that any tribal regulations were

violated. Therefore, even under the approach presented by

petitioner, defendants could not have been convicted of vio-

lations of state law. Accordingly, this case is an inappropriate

one for review by this Court.

B. There was insufficient evidence presented at trial

that the fish sold by the defendants were taken from

the Columbia River.

The defendants were charged in ten indictments with

possessing, receiving, and selling food fish from the Columbia

River during a closed season in violation of Ore. Rev. Stat. §

509.011. The state attempted to prove that the fish were taken

from the Columbia through two pieces of evidence: first,

paragraph 1 of the stipulation, Exhibit I (quoted in the

17

Petition at pp. 4-5), indicates that on June 30, 1983, the

defendants possessed or sold fish; second, paragraph 8 of the

stipulation states that one of the fish seized on June 30, 1983

had a snout tag identifying it as having been released in

March, 1979 in the Columbia River.

Apparently, the prosecution was relying on the folk

wisdom that salmon invariably return to spawn in the same

river where they were hatched. There was absolutely no

scientific evidence submitted in support of this contention at

trial. Furthermore, there was no request made that the trial

court take judicial notice of this “fact”, nor did the trial court

take judicial notice on its own. Defendants disputed this

“evidence” both in the trial court (Tr. 2/5/85, p. 29) and in the

Oregon Court of Appeals (App. Br. p. 28-29).

Therefore, this case is an inappropriate one for review by

this Court.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted,

LAWRENCE MATASAR

Hoffman, Matasar & Glaeser

1020 S.W. Taylor

Suite 330

Portland, Oregon 97205

(503) 222-9830

Counsel for respondenis