Petition for Writ of Certiorari — Buchanan v. Washington

Supreme Court, Us.

a PILED

99 %8S3 novi 1999

No. PPICE OF THE Chena

IN THE

Supreme Court of the United States

October Term, 1999

DONALD RAY BUCHANAN,

Petitioner,

Vv.

THE STATE OF WASHINGTON

Respondent.

Petition for a Writ of Certiorari to the

Washington Supreme Court

PETITION FOR WRIT OF CERTIORARI

David S. Vogel

Counsel of Record

Law Offices of David S. Vogel

520 Pike Street, Suite 1505

Seattle, WA 98101-4001

(206) 622-2573

Attorney for Petitioner

RPI Legal Printers, Seattle, Washington

—_)

(This Page Intentionally Left Blank)

QUESTION PRESENTED

Whether the Washington Supreme Court's _ restrictive

interpretation of Indian hunting rights under the Stevens

Treaties ignores the plain language of those Treaties and

conflicts with settled principles of treaty construction in the

federal courts?

TABLE OF CONTENTS

Page

eb ee OR sy 2 a rr 1

NT UTES Bai i cigs caceuavussscycsseceaucccvnctes il

Ra Te DT LE oa cose hésdesccesicssscrissecican IV

OPINIONS AND JUDGMENTS BELOW............... oe

aah ce cn lcacch eaten annkesisontasknves l

pe Ey eB °: » Se ee re 2

ey ts Bt 9 Oe | en re a

REASONS FOR GRANTING THE WRIT................. 6

I. The State Court’s Disregard For The

Plain Language Of The Stevens

Treaties Conflicts With Settled

Principles Of Treaty Construction............. 8

Se Se iocincwcaussGoeorepaiieuKi avers 9

B. Expressio Unius Est Exclusio Alterius....... 1]

C. Treaties are Broadly Interpreted

NE I ciidcc vnncnusivcedesusy sha 12

Il. The Washington Supreme Court’s

Erroneous Application Of The

“Reserved Rights” Doctrine

Conflicts With Decisions Of The

Eighth Circuit And The Ninth Circuit............. 14

A. The “Reserved Rights” Doctrine Is a

Liberal Rule of Treaty Interpretation......... 15

1A hla ie ic PCE A RAI Me AT was

-iii-

TABLE OF CONTENTS - Continued

Page

B. The Stevens Treaties Reserved

Part Of The Tribes’ Subsistence

aa ace 20

Sad > REE ahexddgaducs\eiedeuessedasanavareoaes 24

Ge aI ait sibs nnd ccunvednscecudbighhe(detasuwnenbien 28

APPENDICES

A. Opinion of the Washington Supreme Court....... Al

B. Opinion of the Washington Court of Appeals.... Bl

C. Superior Court Findings of Fact

and Conclusions of Law Supporting

Order and Judgment of Dismissal................. Cl

D. Order Denying Motion For Reconsideration..... D1

BS. THMUEY OF PIE BIO UEaiicii os vs cccsccs cg ccceccnnss. El

Pi I Oe Fi ickeitiieiinkvisitnnay Fl

G. Milles Lacs District Court Opinion Excerpt..... Gl

H. Washington Fish and Wildlife Policy.............. H1

I. Newspaper Articles and Editorals................ I]

-]1V-

i

TABLE OF AUTHORITIES

:

Federal Decisions

Alaska Pacific Fisheries v. United States,

SO PN Fa aire cacchin sks Vans ceb nkcig os dacs akianntasSanichavionas 17 j

Antoine v. Washington,

Aa, OI cnt dhnisnsasss eexevndindeasacsinccsgcuceneaice 12, 13

Arizona v. California, .

Ra ER iisienicin ctisdicicescamsiereenneuee 24

Brady v. Maryland, :

FEE ee it cediiatias ac tasti aie eae 6

Chan v. Korean Air Lines, Ltd., i

Pe Ae, Be CN iaisceeeiipadbncd dee cnctiseiadiebtiasudieel 9

Choctaw Nation v. Oklahoma,

SPE Gccha Ce i calncs sexed decncrisataibioh ainaiksCobiacacteecnnens 12

Choctaw Nation v. United States,

EME GP Pee I sirchsenhtnddciinccnansnceas RERY SEAEN OOTP ED SAP 10

Cox Broadcasting Corp. v. Cohn,

A Fi Mie ichaicsaihinca sdceccddinbn das hasdiak telah dauihansias 6

Crawford Fitting Company v. J.T. Gibbons, Inc.,

ee Fe UR Cebit bicsk acd cdasandidt bene visaaindioateia 12

Georgia v. South Carolina,

MT UE a as iii ste ee 24

Leatherman v. Tarrant County Narcotics Unit,

ee rs ices ons css cn cease aactnenadandonionn ll

Maximov v. United States,

ee Beer a astsktendocaetandcnctiasisascos inavidenlaadccouas 10

Mille Lacs Band Band of Chippewa Indians v. Minnesota

(Mille Lac II),

861 F.Supp. 784 (D. Minn. 1994) .o... ee eeeeeeeeeees 24

lceasisaimumiibaiiiaesiaiiiaila

-V-

TABLE OF AUTHORITIES - Continued

Mille Lacs Band of Chippewa Indians v. Minnesota,

124 F.3d 904 (8™ Cir. 1997) .....sseessseeseees 7, 14, 15, 17, 19

Minnesota v. Mille Lacs Band of Chippewa Indians,

US. , 119 S. Ct. 1187 (1999).......... 8, 13, 15, 17

Radio Station WOW vy. Johnson,

FA es RA CR ristccnrnsntrntiniricd ee eee 6

The Amiable Isabella,

FEI, FAMED seis si is ctkicnicessnnnscncsaseccecacaneebnee mscaeee 9,10

Tulee v. Washingion,

FED Kelsie MOE A CRE Dciicnaiscnscatacsaincnsibeeavieaeain bana )

TVA y. Hill,

O37 VB 153 UF Fel kcnccintiaadn eee ll

United States v. Choctaw and Chickasaw Nation,

D7 ice He 0 Bt iccininttuasentieciekemepneele 10

United States v. Washington,

135 F.3d 618 (9th Cir. 1988),

cart. demiad, 119 S.C%; 2377 C1SG9) wvcccccscciasccccdsiiinnscens 7. ae

United States v. Washington,

384 F.Supp. 312 (W.D. Wash. 1974)...............7, 20, 26, 27

United States v. Washington,

459 F.Supp. 1020 (W:D. Wash. 1978)................ccscccsssees 26

United States v. Washington,

520 F.2d. 676 (9th Cir. 1975),

cert. denied, 423 UB. 1066 (1976)...........ccccceccsccccecceee 7,20

United States v. Washington,

626 F.Supp. 1405 CW DD. Waid. 1SGS)......0..ccccceccsisensencses 26

United States v. Washington,

873 F.Supp. 1422 (W.D. Wash. 1994)............c eee 7,21

-Vi-

TABLE OF AUTHORITIES - Continued

United States v. Winans,

198 U.S. 371 (19085)..........0.... 15, 16, 18, 19, 20, 21, 22, 23

U.S. Term Limits, Inc. v. Thornton,

SIS UB. TIO CRB iickccercscsahoticcenvsscacaaeiadeeesaemes 11

Washington v. Washington State Commercial Passenger

Fishing Vessel Ass'n.,

GES UD. Ge CF resin vsscictsnnitiantial 8, 13, 15, 16, 21, 23

Williams v. Florida,

FHP Webs TO CES Pe icissacssncissisccinnsansetantaameee 12

Winters v. United States,

BOT Ue. Fe ie iccancsnsnssonevansanessvisibincicdaapeeeandeane 16

Yakama Indian Nation v. Flores,

955 F Sapp. 1229 CED. Wee. IFT cic 22

State Decisions

State v. Miller,

102 Wn.2d 678, 689 P.2d 81 (1984)... 8,9

Treaties, Statutes & Regulations

2B UG. & USS TURD scccccsricesanscncuneiginteniaieaiiancusaaaiasia 2

64 Fed Reg. 14308 (March 24, 1999) ooo... cee eecececesseseeees 24

Chappowa Treaty 1829 (Art. VIB) ooinccccasccsscceccooctoscuevsacesssansys 3

Endangered Species Act.

BO UG... SAFER, ORI csasccancciscaleccsmtauieseaiaieeaes 24

Mionnt Treaty 1626. CAg6. 8) aisceccisssvirsissieockebcececetiesenbesscioans 3

Ottawa Treaty 1836 (Art. Thirteenth).............00.ccceeeeeeeeeeees 3

Pawnee Treaty 1553 GA UD isis icsetsinsciecstddspndsionaeesaeen a

Potowatomi Treaty 1826 (Art. 7).........:ccccc..ccccccscsesescsescessesens 3

* Dd A oie Nene titaliehd ly MIC eae TR II i aa R AS. A bol dill ds ee tA ce ee a

ORAL ARR hehe 9 tae eH AL Sateen oe Iw

-Vil-

TABLE OF AUTHORITIES - Continued

Pe FV SE ME hasta aessatelbdcubstibckaiinpconavéhudavndsiasicodaesss 4

I Fa ee 4

Treaty of Medicine Creek, December 26, 1854,

PP Os BIE abcniinsdchiarhiaceteuisatendsie Lacahainaastieidelas lactate 2,8

Treaty of Olympia, July 1, 1855,

cc GE, See Eeare ra ibe ovis Wi OD enema Seana ROC 2,8

Treaty of Point Elliott, January 22, 1855,

I I IE cna ahaha a 2, 3,4,5 ,6,%

Treaty of Point No Point, January 26, 1855,

i EE ateladithinditg sneha iat adits akdisimisatiuceied 2,8

Treaty with the Makah, January 31, 1855,

ae I Fares sciatic ncdanchataienponesnlitsiia sivas canadian 2,8

Treaty with the Yakamas, June 9, 1855,

De I TE epiltackoceancs ainda Pot acct ep dalcetieaae 2,8

pf | SANG aero aR eRe eee SRE RTL: 24

Other Authorities

Ballantine, 7itle by Adverse Possession,

ee SUE, Bs IU. NSO CRI kc ickkkidcesncanadsnsnidieockennisianscouss 24

Cohen, Handbook of Federal Indian Law (1982)..........0....- 16

2 E. Farnsworth, Farnsworth on Contracts,

RE) SARACEN oe ele noe CCSD eRe NO RON Meee 12

Lund, Early American Wildlife Law,

Pe es as es ls PO arse thcinccsccccatssoccesninies 23, 24

Sutherland on Statutory Construction,

NS NN Go iicice ci saa scinsadensiunniinimssomiindersods 12

Sutheriand on Statutory Construction,

I rr EU ne a 9

(This Page Intentionally Left Blank)

eo

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1999

DONALD RAY BUCHANAN, Petitioner,

v.

THE STATE OF WASHINGTON, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

WASHINGTON SUPREME COURT

Donald Ray Buchanan respectfully petitions for a writ of

certiorari to review the judgment of the Washington

Supreme Court in this case.

OPINIONS BELOW

The Washington Supreme Court’s opinion is reported at

138 Wn.2d 186, 978 P.2d 1070 and reprinted in the appendix

hereto (“App.”) at Al-28. That opinion reversed the

decision of the Court of Appeals, Div. III, reported at 87 Wn.

App. 189, 941 P.2d 683 and reprinted at App. B1-8. The

Court of Appeals affirmed the dismissal of charges against

petitioner by the Superior Court of Yakima County. The

Findings of Fact and Conclusions of Law supporting the

Order of Dismissal are reprinted at App. C1-7.

one

—

JURISDICTION

The Washington Supreme Court filed its judgment on

June 17, 1999. App. Al. Petitioner’s timely motion for

reconsideration was denied on August 3, 1999. App. D1.

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1257(a)..

TREATIES INVOLVED

Article V of the Treaty of Point Elliott, January 22,

1855, 12 Stat. 927 (App. E1-7), provides:

The night of taking fish at usual and accustomed

grounds and stations is further secured to said

Indians in common with all citizens of the Terntory,

and of erecting temporary houses for the purpose of

curing, together with the privilege of hunting and

gathering roots and berries on open and unclaimed

lands; provided, however, that they shall not take

shell fish from any beds stated or cultivated by

citizens.

The Treaty of Medicine Creek, December 26, 1854, 10

Stat. 1132; Treaty of Point No Point, January 26, 1855, 12

Stat. 933; Treaty with the Makah, January 31, 1855, 12 Stat.

939; Treaty of Olympia, July 1, 1855, 12 Stat. 971; and

Treaty with the Yakamas, June 9, 1855, 12 Stat. 951, are

involved in this case.

-3-

STATEMENT OF THE CASE

The Point Elliott Treaty of 1855, by its express terms,

secures and limits tribal hunting within “open and unclaimed

lands.” The terms of the Treaty do not restrict hunting to

ceded lands.! Whereas the tribal right to fish is restricted

and reserved in the Treaty to “usual and accustomed grounds

and stations,” there are no such geographic limitations on

hunting. App. E1-7.

On January 6, 1995, petitioner Donald Buchanan, an

enrolled member of the Nooksack Indian Tribe, his brother,

and uncle were stopped by Washington Department of Fish

and Wildlife (“DFW”) officers with two recently killed elk

in their possession in the Oak Creek Wildlife Area, on land

owned by the Washington Department of Natural Resources,

east of the summit of the Cascade Mountains.2_ Buchanan

explained to the officers that he was hunting for subsistence

purposes pursuant to the Point Elliott Treaty. App. C2.

! In previous treaties including the Potowatomi Treaty 1826 (Art. 7),

Miami Treaty 1826 (Art. 8), Chippewa Treaty 1829 (Art. VII), Pawnee

Treaty 1833 (Art. II), and Ottawa Treaty 1836 (Art. Thirteenth), the right

of hunting had been restricted to lands ceded by the Indians to the United

States. App. C3-4, E1-2.

“ The lands ceded to the United States by the tribal parties to the Point

Elliott Treaty are bordered on the east by the summit of the Cascade

Range.

-4-

The Nooksack Indian Tribe, a party to the Point Elliott

Treaty, regulates hunting by its members through its Hunting

Regulations and Hunting Code. At the time of this incident,

Buchanan possessed valid tribal tags to hunt elk for

subsistence purposes in the area in question. Buchanan had

not violated any tribal regulations. App. C2-3.

Buchanan was charged with two felony counts of

violating RCW 77.16.020(1)(E), which prohibits possessing

big game during the closed season, and one misdemeanor

count of violating RCW 77.21.60(2), for hunting while his

Washington hunting license was revoked. App. C2.

Buchanan moved to dismiss the charges before tnal on

the ground that he was iawfully exercising his subsistence

hunting rights under the Point Elliott Treaty. The superior

court judge dismissed the charges after a hearing on the

motion, rejecting the State’s arguments that the treaty

hunting nght was limited to ceded lands and traditional

hunting grounds. App. C1-7.

The Court of Appeals unanimously affirmed, stating:

[T]Jhe Point Elliott treaty, by its express terms, does

not limit hunting rights to the ceded lands or to

traditional hunting grounds. Although fishing is

reserved only on usual and accustomed grounds and

Stations, hunting nghts extend anywhere in the

territory that is open and unclaimed.

—

App. B4.

The Washington Supreme Court granted the State’s

petition for review on April 1, 1998. DFW and the Modem

Firearm Hunters of Washington filed amicus briefs

supporting the State’s position. The late Professor Ralph W.

Johnson of the University of Washington Law School filed

an amicus brief supporting affirmance. Seventeen tribes of

Washington State filed a joint brief supporting affirmance

and providing an overview of tribal management and

cooperation regarding off-reservation hunting. App. A5-6.

The Washington Supreme Court reversed, adopting the

State’s argument that “the hunting right reserved by the

treaty was limited to the night previously exercised—that is

to the ceded lands or to lands upon which the Nooksack

Tribe traditionally hunted.” App. Al7. The decision states:

The geographic scope of the hunting right cannot

be resolved from the language of the treaty alone.

We hold that application of the reservation of rights

doctrine is the more legally sound approach to

interpreting the hunting rights provision of the

Treaty of Point Elliott. Under such an analysis,

open and unclaimed lands within the aboriginal

hunting grounds of the Nooksack Tribe are reserved

under the treaty for hunting by tribal members, so

long as the lands remain open and unclaimed. The

geographic area available for hunting would

certainly include the territory ceded to the United

States and described in article I of the Treaty of

———

-6-

Point Elliott, and may include other areas if those

areas are proven to have been actually used for

hunting and occupied by the Nooksack Tribe over

an extended period of time. Because the trial court

did not so limit the geographic scope of the

Nooksack’s treaty, we reverse the dismissal of the

charges against defendant Buchanan.

App. A21. The court held that “on remand, the defendant

should have the opportunity to prove that the Nooksack

Tnbe’s aboriginal hunting grounds include the land within

the Oak Creek Wildlife Area.” App. A21.

The Washington Supreme Court’s determination of the

geographic scope of Indian hunting rights under the Stevens

Treaties was a final decision that “will survive and require

decision regardless of the outcome of future state-court

proceedings.” Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 480 (1975); see Brady v. Maryland, 373 U.S. 83, 85 n.1

(1963); Radio Station WOW v. Johnson, 326 U.S. 120, 124-

27 (1945).

The State has agreed to stay any further proceedings on

remand pending resolution of the treaty issue in this Court.

REASONS FOR GRANTING THE WRIT

The Washington Supreme Court overstepped its

authority by adding geographic restrictions to the Stevens

a

9.

Treaties incompatible with their plain language and contrary

to settled principles of treaty construction.

The Washington Supreme Court’s decision turned on its

invocation of the so-called “reservation of rights doctrine,”

which (in that court’s idiosyncratic interpretation) restricts

treaty rights to mid-19" century tribal practices. This

unprecedented use of the “reserved rights” doctrine, which

limits treaty hunting rights to areas of historic use and

occupancy, conflicts with the Eighth Circuit’s decision in

Mille Lacs Band v. Minnesota, 124 F.3d 904, 933 (8" Cir.

1997), aff'd 526 U.S. 172 (1999).

The Ninth Circuit has rejected similar attempts by

Washington State to apply this “doctrine” to restrict tribal

rights under the Stevens Treaties regarding anadromous fish.

United States v. Washington, 384 F Supp. 312, 362, 401-02

(W.D. Wash. 1974)(Boldt, J.), aff'd, 520 F.2d 676, 691-92

(9" Cir. 1975) cert. denied, 423 U.S. 1086 (1976), and

shellfish. United States v. Washington, 873 F.Supp. 1422,

1431 (W.D. Wash. 1994)(Rafeedie, J.), aff'd in relevant part,

135 F.3d 618, 630-31 (9" Cir. 1998), cert. denied _USS.

__» 1198S. Ct. 1377 (1999).

-8-

The decision in this case, which affects the hunting

rights of every treaty tribe in Washington,’ has set back

efforts between the tribes and the State to coordinate game

management, and has created confusion and uncertainty for

courts, prosecutors, enforcement officers, tnbes and tribal

hunters. Establishing the geographic boundanes of the ceded

lands and aboriginal hunting grounds will require extensive

litigation in trial courts which must now try to reconcile

inconsistent federal and state standards for determining

traditional use.

I. THE STATE COURT’S DISREGARD FOR THE

PLAIN LANGUAGE OF THE STEVENS

TREATIES CONFLICTS WITH SETTLED

PRINCIPLES OF TREATY CONSTRUCTION

Interpretation of Indian treaty language is subject both to

general rules applicable to statutes, contracts and treaties and

> Every treaty in Washington State, including the Point Elliott Treaty,

was negotiated by Isaac Stevens, first Governor and first Superintendent

of Indian Affairs for Washington Territory, over a short period of time

with common councils in pari materia, and contains substantially the

same proviso regarding hunting. See Treaty of Medicine Creek (Art. IV);

Treaty of Point No Point (Art. IV); Treaty with the Makah (Art. IV);

Treaty of Olympia (Art. III); and Treaty with the Yakamas (Art. III);

State v. Miller, 102 Wn.2d 678, 681, 689 P.2d 81 (1984); see generally

Washington v. Washington State Commercial Passenger Fishing Vessel

Ass'n., 443 U.S. 658, 661-69 (1979)(hereinafter “Fishing Vessel’). All of

the treaty tribes in Washington State are therefore affected by the ruling of the

Washington Supreme Court.

-9.

to special canons applicable only to such treaties. See

Sutherland on Statutory Construction, § 64.03 at 269 (Sth ed.

1992); Tulee v. Washington, 315 U.S. 681, 684-85 (1942).

A. Plain Language

The Stevens Treaties are unambiguous regarding the

geographic scope of the hunting right. As opposed to the

fishing right, which is confined to “usual and accustomed

grounds and stations,” the hunting right* is restricted only to

“open and unclaimed lands.”

In Chan v. Korean Air Lines, Ltd., 490 U.S. 122 (1989),

this Court cautioned:

[Where the text is clear, as it is here, we have no

power to insert an amendment. As Justice Story

wrote for the Court more than a century and a half

ago:

"[T]o alter, amend, or add to any treaty, by

inserting any clause, whether small or great,

important or trivial, would be on our part an

usurpation of power, and not an exercise of

judicial functions. It would be to make, and

not to construe a treaty. Neither can this

Court supply a casus omissus in a treaty, any

more than in a law. We are to find out the

intention of the parties by just rules of

* The Washington Supreme Court has interpreted the words “privilege”

and “right,” as used in the Stevens Treaties, to be synonymous. App.

A16; State v. Miller, supra, 102 Wn.2d at 683-84.

-10-

interpretation applied to the subject matter;

and having found that, our duty is to follow it

as far as it goes, and to stop where that stops -

- whatever may be the imperfections or

difficulties which it leaves behind." The

Amiable Isabella, 6 Wheat. 1, 71 (1821).

490 US. at 134-5 (footnote omitted).

Even if evidence existed that the United States had

intended to restrict the hunting nght in the Stevens Treaties

to ceded lands and aboriginal hunting grounds, this Court has

stated more than once:

[T]reaties cannot be rewritten or expanded beyond their

clear terms to remedy a claimed injustice or to achieve

the asserted understanding of the parties.

Choctaw Nation v. United States, 318 U.S. 423, 432 (1943);

accord, United States v. Choctaw and Chickasaw Nation,

179 U.S. 494, 531-533 (1900).

In Maximov v. United States, 373 U.S. 49 (1963), this

Court noted:

[I]t is particularly inappropnate for a court to

sanction a deviation from the clear import of a

solemn treaty between this Nation and a foreign

sovereign, when, as here, there is no indication that

application of the words of the treaty according to

their obvious meaning effects a result inconsistent

with the intent or expectations of its signatories.

;

E

-11-

373 U.S. at 54. Without any support from the language of

the Stevens Treaties or the treaty negotiations, the

Washington Supreme Court reached a result that conflicts

with the obvious meaning of the treaties and virtually every

canon of Indian treaty interpretation.

B. Expressio Unius Est Exclusio Alterius

Numerous treaties, in contrast to the Stevens Treaties,

specifically limit hunting and fishing to ceded lands.‘

Moreover, while the Stevens Treaties limit fishing to "usual

and accustomed grounds" they do not similarly limit hunting.

If the United States had intended to restrict hunting to

ceded lands or traditional hunting areas, as the drafter of the

treaties it was obligated to include these restrictions in the

treaty language. Under the rule of contract and statutory

interpretation, expressio unius est exclusio alterius (specific

inclusions exclude implication), the restriction to “open and

unclaimed” land is exclusive. See U.S. Term Limits, Inc. v.

Thornton, 514 U.S. 779, 793 n.9 (1995); Leatherman vy.

Tarrant County Narcotics Unit, 507 U.S. 163, 168 (1993);

IVA v. Hill, 437 U.S. 153, 188 (1978).

This rule is not a legal technicality, it is a matter of

common sense:

> See e.g. the treaties listed in note 1, supra, and excerpted in App. F1-2.

1%.

Although the expressio unius maxim has _ had

widespread legal application, there is nothing

peculiarly legal about it. it is a product of ‘logic and

common sense’. . . . It expresses the learning of

common experience that when people say one thing

they do not mean something else.

Sutherland on Statutory Construction, § 47.24 at 228 (Sth ed.

1992).

Where the United States can accomplish an objective by

clear and direct words, and where it has chosen to do so in

similar or closely related circumstances in the past, this

Court has found the absence of those clear and direct words

to suggest a lack of intent to accomplish the same purpose.

Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970);

Williams v. Florida, 399 U.S. 78, 97 (1970); Crawford

Fitting Company v. J.T. Gibbons, Inc., 482 U.S. 437, 442

(1987).

The expressio unius rule is related to the axiom of

contract law that a contract should be construed against its

drafter. 2E Farnsworth, Farnsworth on Contracts § 7.11,

pp. 265-68 (1990). This axiom is particularly important in

construing Indian treaties.

C. Treaties are Broadly Interpreted in Favor of

Indians

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

Indian hunting nghts case, this Court declared:

Se

$3.

The canon of construction applied over a century and

a half by this court is that the wording of treaties and

Statutes ratifying agreements with the Indians is not

to be construed to their prejudice. . . In Choate v.

Trapp, supra, also a case involving a ratifying statute,

the court stated: "The construction, instead of being

strict, is liberal; doubtful expressions, instead of

being resolved in favor of the United States, are to be

resolved in favor of a weak and defenseless people,

who are wards of the nation, and dependent wholly

upon its protection and good faith."

420 US. at 199-200.

This Court has held the United States to a higher

Standard of good faith -- “‘a responsibility to avoid taking

advantage of the other side” -- because of its “presumptively

superior negotiating skills and superior knowledge of the

language in which the treaty is recorded,” Fishing Vessel,

supra, 443 U.S. at 675-6. In its decision below, the

Washington Supreme Court acknowledged the rule that the

language of a treaty should not be construed to the prejudice

of the Indians, App. A15, citing Minnesota v. Mille Lacs

Band of Chippewa Indians, ee? See a ety,

(1999), and Antoine, supra, 420 U.S. at 199, but the court

undercut the basis for this rule.

The stereotype of Indian leaders at treaty talks as

being passive and overmatched intellectually is

wrong.

-14-

The negotiators for the Nez Perce, and for other

tribes as well, had a complete understanding of the

situation. . . .

The calculus was about power, and the tnbes

could make the calculations as well as the white

people. The tribal negotiators were sophisticated

and they used every technique and device available

to them. . . .They made their arguments precisely

and ably.

App. Al4.

In reaching its decision, the State Supreme Court did not

construe the language of the Treaty to the benefit of the

Indians. The court ignored the language of the Treaty,

ignored settled principles of Indian treaty construction, and

adopted an argument that has been rejected by both the

Eighth Circuit and the Ninth Circuit -- the so-called

“reservation of nghts doctrine.”

Il. THE WASHINGTON SUPREME COURT’S

ERRONEOUS APPLICATION OF THE

“RESERVED RIGHTS” DOCTRINE

CONFLICTS WITH DECISIONS OF THE

EIGHTH CIRCUIT AND THE NINTH CIRCUIT

The Washington Supreme Court based its decision on

the State’s argument that the treaties only reserved the mid-

19" century rights that Indians had actually exercised, so a

treaty hunting nght is geographically limited to traditional

hunting areas. This so-called “reservation of rights”

argument was rejected by the Eighth Circuit in Mille Lacs

-15-

Band v. Minnesota, supra, 124 F.3d 904, 933 (8" Cir. 1997),

aff'd 526 U.S. 172 (1999).

The argument is flawed in two respects. First, it

misconstrues the “reserved rights” language in Fishing

Vessel and its predecessor, United States y. Winans, 198 U.S.

371, 380 (1905). Second, it attempts to define the reserved

rights too narrowly.

A. The “Reserved Rights” Doctrine Is A Liberal

Rule Of Treaty Interpretation

One of the basic canons of Indian treaty construction,

first stated in the case of United States y. Winans, supra, is

that in order to “give effect to the treaty,” certain rights

inuring to the benefit of the Indians, though not stated j in the

language of the treaty, may be inferred. Jd. at 381. Because

a treaty involves a grant to the United States from the “larger

rights possessed by the Indians, upon the exercise of which

there was not a shadow of impediment,” rights which were

not explicitly granted to the United States in the terms of the

Treaty were reserved to the Indians. Jd

The Winans Court found that, in order to give effect to

the purposes of the Treaty, the “right of taking fish,” limited

to “usual and accustomed grounds and stations,” included the

unwritten but “reserved” night to cross private lands to the

fishing grounds along the Columbia river. Jd.

-16-

In Winters v. United States, 207 U.S. 564 (1908), this

Court applied the Winans “reserved right” doctrine in finding

that the mght to use the waters of the Milk River for

imrigation was impliedly reserved in the agreement

establishing the Fort Belknap Reservation. There was no

evidence that the Indians had ever used the river for

immigation before the agreement, but the use of the waters was

found to be a “reserved night,” necessary to give effect to the

agreement. 207 U.S. at 576; Felix S. Cohen, Handbook of

Federal Indian Law, at 578-81 (1982).

Neither Winans, Winters, nor Fishing Vessel held or

even suggested that an Indian treaty can only secure

previously-exercised nghts. The “reserved nghts” doctrine

is a liberal rule of Indian treaty, statute, and contract

interpretation, not a means for the United States to escape its

sworm obligations. This language should not be

misconstrued to suggest that Treaties do not also contain

grants of nghts from the United States to the Indians.

Indeed, the Winans Court itself recognized that:

Congress has the power to make grants of lands

below high water mark of navigable waters in any

Territory of the United States, whenever it becomes

necessary to do so in order to perform international

obligations . . . or to carry out other public purposes

appropriate to the objects for which the United

States hold the Territory.

Se ee Pe ee

«2%.

198 US. at 383-84.

As a second example, in Alaska Pacific Fisheries y.

United States, 248 U.S. 78 (1918), this Court found that by

setting aside “the body of lands known as Annette Islands”

as a reservation for the Metlakahtla Indians, who had

recently emigrated from British Columbia, Congress had

intended to secure the use of the adjacent fishing grounds for

the foreign-born Indians.

That Congress had power to make the

reservation inclusive of the adjacent waters and

submerged land as well as the upland needs little

more than statement. All were the property of the

United States and within a district where the entire

dominion and sovereignty rested in the United

States and over which Congress had complete

legislative authority. . . The reservation was not in

the nature of a private grant, but simply a setting

apart, "until otherwise provided by law," of

designated public property for a recognized public

purpose -- that of safe-guarding and advancing a

dependent Indian people dwelling within the United

States.

248 U.S. at 87-88 (citations omitted).

More recently, in Mille Lacs Band v. Minnesota, No. 3-

94-1226 (D. Minn. Mar. 29, 1996)(“Mille Lacs IIT’),¢ aff'd,

124 F.3d 904 (8™ Cir. 1997), aff'd 119 S. Ct. 1187 (1999),

-18-

Federal District Judge Michael J. Davis rejected the same

“reserved nghts” argument that the Washington Supreme

Court adopted. His reasoning is persuasive:

The Landowners and the Counties argue that the

Wisconsin Bands do not hold usufructuary nghts in

the Minnesota portion of the 1837 ceded terntory

because none of the Wisconsin Bands used and

occupied the area at treaty times. The Wisconsin

Bands contend that the treaty expressly guarantees

all the signatory bands the privilege of hunting,

fishing and gathering throughout the ceded territory

and that nothing in the treaty suggests that a

particular band must prove its historical use of a

particular portion of the ceded terntory before

exercising its nghts there.

The Landowners and Counties do not and

cannot, point to any language in the 1837 Treaty

that limits the usufructuary nghts granted to certain

areas within the ceded territory. Nor does the case

law support the argument.

The power of Congress to establish or recognize

rights or reservations for Indian tribes does not

derive from the Indians’ abonginal title to lands, it

derives from the Constitution. . .The Counties’

reliance on Winans, supra, Seufert Bros. Co. v.

United States. . .and United States ex rel Charlie v.

McGowan. . . is misplaced as those cases involved

treaties that granted nghts for the taking of fish “at

all the usual and accustomed grounds and stations.”

As this language suggests, the nghts granted under

© The unreported Memorandum Opinion and Order is excerpted and

attached as App. G1-4.

-19-

[that clause of] these treaties was limited to those

areas historically used by the Indians.

In this case, the 1837 treaty only limited the

exercise of usufructuary rights to areas within the

ceded territories. The treaty does not contain any

language restricting the right to hunt, fish or gather

within certain areas within the ceded territory.

. Absent clear language limiting the

Chippewa to exercise their usufructuary rights only

in the areas they occupied, this motion must be

denied.

App. G2-3.

The Eighth Circuit Court of Appeals affirmed this

decision, stating:

All of the cases cited by the Counties in support of

its argument include treaty language which supports

a limitation on the scope of the right. The 1837

Treaty does not tie usufructuary rights to historic

use or occupancy, and thus the Counties’ urgings

defy the plain language of the Treaty.

124 F.3d at 933.

As recognized in Winans and subsequent cases of this

Court, the United States had complete authority to reserve

Tnbal hunting on “open and unclaimed lands” throughout

the Territory of Washington, whether or not the Tribes had

traditionally hunted in these areas, in order to “perform [its]

obligation” to protect the Tribes’ subsistence -- a “public

-20-

purpose appropriate to the objects for which the United

States h[e]ld the Terntory.” 198 U.S. at 383-84. The plain

language of the Treaties does exactly that.

B. The Stevens Treaties Reserved Part Of The

Tribes’ Subsistence Right To Hunt

The Ninth Circuit has rejected similar attempts by

Washington State to apply its “doctrine” to restrict tnbal

rights under the Stevens Treaties regarding anadromous fish

and shellfish.

Almost 25 years ago, in United States v. Washington,

supra, 384 F.Supp. 312 (W.D. Wash. 1974), Judge Boldt

rejected the State’s “reservation of nghts” argument that the

Stevens Treaties restricted tribal fishing only to traditional

methods and species. 384 F.Supp. at 401-02. He also

rejected the argument that reef net fishermen, who had

traditionally fished close to shore, had not reserved the night

to fish in deeper waters. Jd. at 362. Judge Boldt’s reasoning

applies directly to tribal hunting:

In aboriginal times, Indian fishermen, like all

fishermen, shifted to those locales that seemed most

productive at any given time. . .

384 F.Supp. at 362; accord, 520 F.2d at 691-92.

Twenty-five years later, in the shellfish litigation,

Washington argued once again that the “reserved nghts”

Se a

-_

language from Winans and Fishing Vessel could be used to

restrict tribal rights that had not been “exercised.” The

District Court disagreed.

Defendant and the intervenors have argued that

the "right of taking fish" must be limited to those

species of fish the Tribes actually took prior to the

signing of the Stevens Treaties. At that time,

however, the Tribes had the absolute right to

harvest any species they desired, consistent with

their aboriginal title. See Lac Court Oreilles Band

Etc. v. Voigt, 700 F.2d at 352. The fact that some

species were not taken before treaty time--either

because they were inaccessible or the Indians chose

not to take them--does not mean that their right to

take such fish was limited. Because the "night of

taking fish" must be read as a reservation of the

Indians' pre-existing rights, and because the right to

take any species, without limit, pre-existed the

Stevens Treaties, the Court must read the "right of

taking fish" without any species limitation.

The effort by the defendants to read a species

limitation into the “right of taking fish" must fail in

light of the canons of construction favoring Indians.

Defendant and the intervenors ask the Court to

impose a limit on the “night of taking fish" without

pointing to any treaty language in support of that

interpretation. This is impermissible under Winters

and Choctaw Nation.

United States y. Washington, supra, 873 F.Supp. at 143]

(Rafeedie, J.).

ae a Bs

On appeal, the Ninth Circuit Court of Appeals affirmed

this reasoning.

With all deference to the State, there is no language

in the Treaties to support its position: the Treaties

make no mention of any species-specific or

technology-based restrictions on the Tribes’ rights.

United States v. Washington, supra, 135 F.3d 618, 630-

31(footnotes omitted).’ The Washington Supreme Court’s

conclusion in this case is also unsupported by the language

of the Treaties -- there is no reference to geographic

limitations on the Tnbes’ night to hunt.

Prior to signing the Stevens Treaties, Indians could fish

or hunt wherever and whenever they needed to, subject only

to tnbal custom. The nght to fish had not been limited to the

tribes’ “usual and accustomed grounds and stations,” and the

right to hunt had not been limited to “open and unclaimed

lands.”

The mght to resort to the fishing places in

controversy was a part of /arger rights possessed by

the Indians, upon the exercise of which there was

not a Shadow of impediment, and which were not

much less necessary to the existence of the Indians

than the atmosphere they breathed.

? See also Yakama Indian Nation v. Flores, 955 F.Supp. 1229, 1246

(E.D. Wash. 1997)(rejecting Washington State’s claim that the treaty-

reserved mght to travel “does not extend to [Yakama] logging trucks,

because logging is a modern ‘Euroamerican’ enterprise’”’).

as.

Winans, supra, 198 U.S. at 38] (emphasis added).

Neither in Fishing Vessel nor Winans did this Court use

specific geographic terms to describe “rights previously

exercised.” In Fishing Vessel this Court said that “the

Indians had always exercised the right to meet their

subsistence and commercial needs by taking fish from treaty

area waters...” 443 U.S. at 678-79 (emphasis added). The

rights this Court spoke of were the right of subsistence and

the right to earn a livelihood—two of the “larger rights

possessed by the Indians.” Winans, supra, 198 U.S. at 381.

The Stevens Treaties limited fishing geographically to

customary areas. The Treaties limited hunting to unsettled

“open and unclaimed” areas. The right to meet subsistence

and commercial needs had been “exercised” by taking fish.

Fishing Vessel, supra, 443 U.S. at 678-79. The right to meet

subsistence needs had also been exercised by taking game.

But whether or where the “the privilege of hunting” had

previously been exercised has no Significance with regard to

the understanding of the parties to the Treaty--even if the

Treaty were analyzed without regard to the understanding of

the Indians, but rather according to the understanding of

nineteenth century American lawyers. See generally, Lund,

Early American Wildlife Law, 51 N.Y.U. L. Rev. 703, 712-

-24-

714 (1976). The privilege of hunting was not an interest to

or in land, and, like the privilege associated with a modern

fishing or hunting license, did not depend on the exercise of

that privilege. See Mille Lac Band of Chippewa Indians v.

Minnesota, 861 F.Supp. 784, 833-34 (D. Minn. 1994)( “Mille

Lac IT’’).8

Hil. IMPORTANCE

Subsistence hunting has become increasingly important

in light of diminishing salmon returns and the listing of the

threatened Puget Sound Chinook under the Endangered

Species Act, 16 U.S.C. §1531, et seq. See 64 Fed Reg.

14308, 14319 (March 24, 1999). For hunters from a number

of tnmbes, including petitioner's Nooksack Tribe,

conservation closures of traditional herds require that they

travel outside ceded lands in order to harvest game from

healthy herds.°

8 Land and water rights depend on use and possession. Georgia v. South

Carolina, 497 U.S. 376, 393 (1990); Arizona v. California, 460 U.S. 605,

620 (1983); Ballantine, Title by Adverse Possession, 32 Harv. L. Rev.

135 (1918). On the other hand, at the time of the Treaties, American law

followed a policy of “free taking,” recognizing everyone’s nght to take

game. Lund, supra at 705-06, 712.

° The Nooksack elk herd (Game Management Unit 418) and the

Skokomish herd (Unit 636) are subject to Conservation Closures. WAC

232-28-242. DFW Regional Wildlife Biologist Roger McKeel testified

that “[t]he [Nooksack] herd at one time numbered in the thousands and

approximately a thousand animals in the early 70s. It’s presently, from

what I read in our reports, about 300 animals.” RP 32.

24.

Following the Court of Appeals’ decision, the

Washington DFW and a number of Washington tribes jointly

initiated efforts to coordinate hunting regulations, exchange

information,!° and negotiate a comprehensive cooperative

management agreement. See App. H1-2, 11-2. The need to

resolve cultural differences and establish protocols for game

management has become critical in light of diminishing

game populations and the loss of habitat. App. 14, 7, 12.

This case has generated extensive television, radio and

newspaper coverage, with front-page articles and editorials

in almost every major newspaper in Washington State. See

e.g. App. I1-12. Tribal leaders view the State Supreme

Court’s decision reversing the Court of Appeals as a

rewniting of sacred treaties in order to appease large numbers

of non-tribal hunters. Significant damage to a delicate

relationship between the tribes and the State has hampered

negotiations toward cooperative game management

agreements. Several tribes have now indicated their interest

in pursuing an allocation of game in yet another massive

federal case under the Stevens Treaties. See App. 112.

'0 DFW’s lack of information regarding tribal hunting was clearly

illustrated during the motion hearing before the trial court when DFW

Biologist McKeel was unable to produce any information regarding the

number of tribal hunters in the State of Washington or elk kills by tribal

hunters. App. C4.

as.

The Washington Supreme Count’s decision has created

confusion and _ uncertainty for courts, prosecutors,

enforcement officers, tribes and tribal hunters. The

boundaries of the lands ceded by the Washington tribes

under the Steven Treaties are vague, and at times

overlapping. Several hunting cases involving disputes over

these boundaries were stayed pending resolution of the case

below, and may now result in conflicting decisions in

neighboring jurisdictions.

Even more daunting is the challenge for trial courts and

tribal hunters regarding the proof of traditional hunting areas

outside the ceded lands. Establishing usual and accustomed

fishing grounds and stations has necessitated years of

litigation in the federal courts and enormous expenditures.

See, e.g. United States v. Washington, supra 384 F.Supp. at

359-79; United States v. Washington, 459 F.Supp. 1020

(W.D. Wash. 1978); United States v. Washington, 626

F.Supp. 1405 (W.D. Wash. 1985). Determining traditional

hunting grounds will be that much more difficult in view of

the stealthy nature of the chase, and the fact that hunters

followed the herds over broad and rough terrain.!!

!l A fact sheet published by Washington DFW acknowledges that “[t]he

process of proving such traditional use for each of Washington’s 26

treaty tribes could be long and complex.”

4.

Moreover, the burden of proof created by the

Washington Supreme Court conflicts with the burden for

establishing traditional fishing areas in federal court, and is

unrelated to the nature of hunting. In U.S. y. Washington,

supra, Judge Boldt set out the following standard for

determining traditional fishing grounds and stations:

“Usual and accustomed,” being closely

Synonymous words, indicate the exclusion of

unfamiliar locations and those used

infrequently or at long intervals and

extraordinary occasions. Therefore, the court

finds and holds that every fishing location

where members of a tribe customarily fished

from time to time at and before treaty times,

however distant from the then usual habitat of

the tribe, and whether or not other tribes then

also fished in the same waters, is a usual and

accustomed ground or station. . .

384 F.Supp. at 332.

On the other hand, the Washington Supreme Court will

allow a treaty hunting defense outside the ceded lands only

in “those areas . . .proven to have been actually used for

hunting and occupied by the [defendant’s tribe] over an

extended period of time.” !2 (Emphasis added.)

12 The Washington Supreme Court fails to indicate the genesis of this

Standard or any basis for confining hunting to areas that had been

occupied over an extended period of time.

a.

Reconciling these conflicting standards will be quite an

arduous task, and the burden on Washington tribal hunters

asserting a treaty defense in traditional hunting areas outside

the ceded lands may prove insurmountable.

CONCLUSION

For the reasons set forth above, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

David S. Vogel

Counsel of Record

520 Pike Street, Suite 1505

Seattle, WA 98101-4001

(206) 622-2573

Attorney for Petitioner

Al

STATE OF WASHINGTON, Petitioner

V.

DONALD RAY BUCHANAN, Respondent.

No. 66054-9. En Banc.

SUPREME COURT OF WASHINGTON

138 Wn.2d 186; 978 P.2d 1070

June 17, 1999, Filed

August 3, 1999, Reconsideration denied

COUNSEL: Jeffrey C. Sullivan, Prosecuting Attomey, and

Kenneth L. Ramm and Lauri M. Boyd, Deputies, for petitioner.

Law Offices of David S. Vogel, by David S. Vogel, for

respondent.

Kevin R. Lyon and Ronald J. Whitener on behalf of Squaxin

Island Tribe; Mason D. Morissett on behalf of Tulalip Tribes; Bill

Tobin on behalf of Nisqually Indian Tribe; Phillip E. Katzen and

Allen H. Sanders on behalf of Sauk-Suiattle and Stillaguamish

Tribes; Kathryn J. Nelson on behalf of Pt. Gamble S’Klallam,

Jamestown S’Klallam, Lower Elwha S’Klallam, and Skokomish

Tribes; Debra S. O’Gara on behalf of Puyallup Tribe; Harold

Chesnin on behalf of Upper Skagit Tribe; Daniel A. Raas on behalf

of Lummi Tribe; Alix Foster and Allan E. Olson on behalf of

Swinomish Indian Tribal Community; John C. Sledd on behalf of

Suquamish Indian Tribe; Elizabeth F.M. Nason on behalf of Bands

of Yakama Indian Nation; Jeffrey J. Bode on behalf of Nooksack

Tribe; and Robert L. Otsea, Jr., and Alan C. Stay on behalf of

Muckleshoot Indian Tribe, amici curiae.

A2

Christine O. Gregoire, Attorney General, and Robert K.

Costello, Assistant, on behalf of Department of Fish and Wildlife,

amicus curiae.

Joseph L. Coniff, Jr., on behalf of Modern Firearm Hunters of

Washington, amicus curiae.

Ralph W. Johnson, amicus curiae.

GUY, C.J. -- This is a criminal prosecution for illegal hunting of

elk in the State-owned Oak Creek Wildlife Area. The defendant, a

member of the Nooksack Indian Tribe, claims he has a treaty nght

to hunt elk in the Oak Creek Area, and that this right may not be

restricted by state hunting regulations. The issues presented are (1)

whether the geographic scope of the tribe's treaty right to hunt on

open and unclaimed lands includes the Oak Creek Wildlife Area,

(2) whether the Oak Creek Wildlife Area is open and unclaimed

land, and (3) whether the tribe's treaty nght to hunt outside the

reservation was abrogated by Washington's admission to the Union

"on equal footing" with the original states.

We reverse the dismissal of the criminal action and remand for

trial. We hold that, on remand, the defendant may raise a treaty

right to hunt as a defense to the criminal charges and may offer

evidence in support of his position that the Oak Creek Wildlife

Area is within the aboriginal hunting grounds of the Nooksack

Tribe. We also hold that under the facts presented in this case, the

Oak Creek Wildlife Area is "open and unclaimed" land within the

meaning of the Nooksack's treaty. We decline, in this case, to

A3

reconsider prior case law on whether the equal footing doctrine

applies to impliedly abrogate Indian treaty nghts in Washington.

FACTS

On January 6, 1995, defendant Donald Buchanan was stopped

by Department of Fish and Wildlife enforcement officers while

Buchanan was hunting in the Oak Creek Wildlife Area, land which

is owned and managed by the State of Washington. The defendant

was in possession of two recently killed five-point, branch-antlered

bull elks. At the time he was stopped, the defendant's Washington

state hunting license had been revoked, and the Washington elk

hunting season was closed.

The Oak Creek Wildlife Area, which is near Yakima, is open to

the public at specified times each year for hunting, fishing and

recreational purposes. During the fall and winter of 1994-95, state

regulations permitted elk hunting in the Oak Creek Wildlife Area

only from November 5 through 13, 1994. The number of branch-

antlered elk that could be killed also was regulated during the

hunting season, and only young "spike bulls" could be killed

without a special permit. The purposes of the restrictions on elk

hunting in the Oak Creek Wildlife Area are to maintain and

manage the existing elk population. However, there is not an

immediate threat to elk, as a species, in the Oak Creek Wildlife

Area.

Defendant Buchanan is a resident of Kent, Washington, and a

member of the Nooksack Indian Tribe. At the time he was stopped

by Wildlife enforcement Officers, he possessed both a Nooksack

Tribe identification card and hunting tags issued by the Tribe. The

A4

Nooksack Tribe's reservation is located in Whatcom County, near

Deming. The lands ceded to the United States by the Nooksack

Tribe under the provisions of the Treaty of Point Elliott,’ which is

the treaty involved here, are bordered on the east by the summit of

the Cascade range. The Oak Creek Wildlife Area is east of the

territory ceded to the United States by the Nooksacks.

Defendant Buchanan was charged with two felony counts of

possessing big game during a closed season, former RCW

77.16.020(1 (E), former RCW 77.21.010(1) (second or subsequent

violation), and with one misdemeanor count of hunting while

license is revoked. Former RCW 77.21.060(2).’

Defendant Buchanan moved to dismiss the charges on the

ground that State hunting regulations do not apply to hunters, like

Buchanan, who are members of Indian tribes that have a treaty

right to hunt on open and unclaimed lands. He claims the only

regulations that govern his hunting on open and unclaimed lands

are those of the Nooksack Indian Tribe.

' Treaty Between the United States and the Dwamish, Suquamish, and other allied

and subordinate Tribes of Indians in Washington Territory, Jan. 22, 1855, 12 Stat.

927.

” Former RCW 77.16.020(1) provided in pertinent part: "It is unlawful to hunt,

fish, possess, or control a species of game bird, game animal, or game fish during

the closed season for that species.” Laws of 1987, ch. 506, sec. 59. Former RCW

77.21.010(1) provided that a subsequent violation of the hunting laws must be

prosecuted and punished as a Class C felony. Laws of 1988, ch. 265, sec. 3.

Former RCW 77.21.060(2) provided, in pertinent part, that it was “unlawful for a

person to conduct an activity requiring a wildlife license, tag, or stamp for which

they have had a license forfeiture[.]" Laws of 1989, ch. 314, sec. 6. In 1998 the

Legislature revised and recodified the criminal laws governing the taking of fish

and wildlife. Laws of 1998, ch. 190. The prohibitions and penalties have not

changed. See RCW 77.15.410 (unlawful hunting of big game); RCW 77.15.670

(unlawful hunting while hunting privileges revoked).

AS

The trial court granted the motion to dismiss the charges,

ruling: (1) the language of the Treaty of Point Elliott does not

restrict hunting to open and unclaimed lands within the area ceded

by the Indians to the United States, but instead gives tribal

members a right to hunt anywhere in the "Territory of

Washington"; (2) the term "open and unclaimed lands" includes

public lands, such as the Oak Creek Wildlife Area, which are put

to uses compatible with an Indian hunting privilege; and (3)

although Indian hunting privileges may be limited if necessary for

conservation, the State, in this case, failed to demonstrate that

application of State hunting regulations to treaty tribe hunters is

necessary for conservation.

On appeal, the State challenged the trial court's conclusions

and, additionally, argued that the Treaty of Point Elliott was

abrogated by Congress when Washington was admitted to the

Union on equal footing with the Original states. The Court of

Appeals affirmed and declined to consider the equal footing

argument, as that issue was not presented to the trial court and was

not asserted to be of constitutional magnitude. State v. Buchanan,

87 Wn. App. 189, 196, 941 P.2d 683 (1997), review granted, 134

Wn.2d 1012, 958 P.2d 316 (1998). This court granted the State's

petition for review.

Several treaty tribes, including the Nooksack Tribe, have filed

an amicus brief Providing an overview of tribal management of

off-reservation hunting by tribal members, a description of

cooperative agreements governing wildlife management between

tribes and between various tribes and the State, and further setting

Aé

forth the tribes' position on the meaning of "open and unclaimed"

lands.’ Professor Ralph Johnson of the University of Washington

School of Law has filed an amicus bref on the proper

interpretation of the treaty language "open and unclaimed" lands.

An amicus brief has been filed by the Department of Fish and

Wildlife on the issues of the geographical scope of the treaty nght

involved and on the designation of the Oak Creek Wildlife Area as

open and unclaimed lands during the winter months. Modern

Firearm Hunters of Washington has filed an amicus bref in

support of the State's equal footing argument.

Prior to oral argument in this court, the State filed a motion

captioned, "Request for Judicial Notice or to Supplement the

Record Under RAP 9.11." In its motion the State argues that

defendant Buchanan should not be permitted to raise the defense

that he has a treaty night to hunt because the Nooksack Tribe was

not a signatory to the Treaty of Point Elliott. Defendant Buchanan

responded to the motion and, additionally, moved for sanctions

against the State, arguing the motion was fnvolous and made for

purposes of delay. Both motions were passed to the merits.

ISSUES

1. What is the geographic scope of the Nooksack Indian Tribe's

treaty hunting right?

* The tribes joining in the amicus brief are the Squaxin Island Tribe, Tulalip

Tribes, Nisqually Indian Tribe, Port Gamble, Jamestown and Lower Elwha Bands

of S'Klallam for the Skokomish Tribe, Puyallup Tribe, Upper Skagit Tribe, Sauk-

Suiattle Tribe, Stillaguamish Tribes, Swinomish Indian Tribal Community,

Suquamish Tribe, Yakama Indian Nation, Lummi Tribe, Nooksack Tribe, and

Muckleshoot Indian Tribe.

A7

2. Is the State-owned Oak Creek Wildlife Area "open and

unclaimed lands" within the meaning of the Treaty of Point Elliott?

3. Were those provisions of the Treaty of Point Elliott which

conflict with the State's right to regulate off-reservation hunting

abrogated by Congress when Washington was admitted to the

Union upon "equal footing" with the original states?

DISCUSSION

We begin by denying both the State's motion for judicial notice

or to supplement the record and the defendant's motion for

sanctions.

In its motion, the State first argues that this court should take

judicial notice that the court lacks "subject matter jurisdiction"

over defendant Buchanan's defense because the Nooksack Tribe

was not a signatory to the Treaty of Point Elliott and Buchanan,

therefore, has no treaty hunting rights.

The State's motion raises a new issue--that is, whether

defendant Buchanan failed to prove a necessary element (the

existence of a treaty) of his defense. The court generally will not

consider issues which are not set forth in the petition for review,

RAP 13.7(b), nor arguments raised for the first time on appeal.

See, e.g., Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483

(1992). However, this rule does not apply when the issue raised

affects the right to maintain an action. Jones v. Stebbins, 122

Wn.2d 471, 479, 860 P.2d 1009 (1993). In this case, the State

claims that defendant Buchanan does not have a nght to maintain

his defense and, therefore, the court should take judicial! notice that

it is without jurisdiction to consider it.

A8

The issue raised by the State does not present a jurisdictional

question. Jurisdiction is the power of the court to hear and

determine the class of action to which a case belongs. State v.

Werner, 129 Wn.2d 485, 493, 918 P.2d 916 (1996); Bour v.

Johnson, 80 Wn. App. 643, 647, 910 P.2d 548 (1996). This is a

criminal felony action brought by the State. The tral court had

authority to determine the legal and factual issues involved. RCW

2.08.010; Werner, 129 Wn.2d at 493. This court has the power to

determine the appeal. RCW 2.04.010.

Alternatively, the State asks to supplernent the record with

documents showing that the Nooksack Indian Tribe has previously

taken the position that it was not a party to the treaty. This issue

was resolved in 1978 in an action in which the State of

Washington was a defendant, and in which the trial court ruled that

the Nooksack Indian Tribe was included in the Treaty of Point

Elliott. United States v. Washington, 459 F. Supp. 1020, 1040-41

(W.D. Wash. 1978) (posttrial substantive orders following the

initial Boldt decision),* aff'd, 645 F.2d 749 (9th Cir. 1981) (the

appeal does not challenge the trial court's ruling relating to the

Nooksack's status as a treaty tribe).

The State argues that this court need not consider the federal

court decision because it is "a lower federal court case which is

The first of the so-called "Boldt decisions" is set forth in United States v.

Washington, 384 F. Supp. 312 (W.D. Wash. 1974). The underlying litigation and

the Boldt decision orders have been the subject of numerous actions in both

Washington and federal courts. Puget Sound Gillnetters Ass'n v. Moos, 92 Wn.2d

939, 603 P.2d 819 (1979), traces the history of the litigation through 1979.

:

:

3

‘

A9

non-binding precedent on this court." Request for Judicial Notice

at 6. However, the State was a party to the federal court Case and is

bound by its tuling. Puget Sound Gillnetters Ass'n y. Moos, 92

Wn.2d 939, 953, 603 P.2d 819 (1979) (all Parties, and all those

who are in privity with Parties, must comply with the federal court

orders entered in United States v. Washington). See also Nielson y.

Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 262, 956 P.2d

312 (1998) (the doctrine of collateral estoppel prevents relitigation

of an issue, in state court, after the party against whom the doctrine

is applied has had a ful] and fair Opportunity to litigate his or her

Case in federal court). The State claims the federal trial court's

decision on the issue is erroneous, but it did not appeal the trial

court's findings and conclusion with respect to the Nooksack Tribe.

Recourse from an erroneous federal court decision is through the

federal system. Puget Sound Gillnetters, 92 Wn.2d at 952.

Accordingly, we deny the motion to supplement.

Although we deny the State's motion, we decline to Impose

sanctions against it. We are Satisfied that the motion was filed in

good faith.

We turn now to the substantive issues in this appeal.

Defendant Buchanan's defense to the criminal charges brought

against him is that he is not subject to State hunting laws because

he has a treaty right to hunt on any open and unclaimed lands in

"Washington Territory," and that this treaty nght is superior to the

nght of the State to regulate hunting.

The State makes essentially three arguments. First, it argues

that any treaty hunting right that exists in the Nooksack Tribe

Al0

should be interpreted to permit hunting only on open and

unclaimed land within the area ceded to the United States by the

tribe, or upon land which the tribe has traditionally hunted.

Second, the State argues that even if the treaty affords a right to

hunt outside the ceded area, the Oak Creek Wildlife Area is not

"open and unclaimed" land. Finally, it urges this court to hold that

no treaty right to hunt or fish in violation of State regulations

survived Washington's admission to the Union on "equal footing"

with the original states.

Our initial inquiry is to determine the geographic scope of the

Nooksack Tribe's treaty hunting right.

In 1854 and 1855 Isaac Stevens, who was the first Governor

and Superintendent of Indian Affairs for Washington Termitory,

negotiated several treaties between the United States and the

various tribes and bands of Indians who lived in the Territory.”

See generally United States v. Washington, 384 F. Supp. 312, 353-

57 (W.D. Wash. 1974); Seufert Bros. Co. v. United States, 249

U.S. 194, 39 S. Ct. 203, 63 L. Ed. 555 (1919).

At the time the treaties were negotiated, approximately three-

fourths of Western Washington's 10,000 or so inhabitants were

Indians. Washington v. Washington State Commercial Passenger

Fishing Vessel Ass'n, 443 U.S. 658, 664, 99 S. Ct. 3055, 61 L. Ed.

2d 823 (1979) (hereafter Fishing Vessel). The natural resources

5 tn addition to what is now Washington State, Washington Territory included

parts of Idaho and Montana. See Charles F. Wilkinson, /ndian Tribal Rights and

the National Forests: The Case of the Aboriginal Lands of the Nez Perce Tribe,

34 Idaho L. Rev. 435, 436-37 (1998).

All

appeared to the parties to be inexhaustible. Fishing Vessel, 443

US. at 669.

In the treaties, the Indians relinquished their interest in most of

the Territory in exchange for monetary payments. Additionally,

certain relatively small parcels of land were reserved for the

exclusive use of particular tribes or bands, and the Indians were

afforded other guarantees, such as certain rights of fishing and

hunting. Fishing Vessel, 443 U.S. at 662.

The Treaty of Point Elliott was made in January 1855 and

ratified March 8, 1859. As noted above, the Nooksack Indian

Tribe was judicially determined to be a party to the treaty in

United States v. Washington, 459 F. Supp. 1020. The first article of

the treaty includes a description of lands ceded to the United States

by the Indians. The treaty provides, in article 1, that the "said

tribes and bands of Indians hereby cede, relinquish, and convey to

the United States all their right, title, and interest in and to the

lands and country occupied by them, bounded and described as

follows: Commencing at [the inlets and bays of western

Washington Territory] to the summit of the Cascade range of

mountains." Treaty of Point Elliott at 927.

Article 5 of the treaty provides:

The right of taking fish at usual and accustomed grounds and

Stations is further secured to said Indians in common with all

citizens of the Territory, and of erecting temporary houses for

the purpose of curing, together with the privilege of hunting and

gathering roots and berries on open and unclaimed lands.

Provided, however, that they shall not take shell-fish from any

beds staked or cultivated by citizens.

Treaty of Point Elliott at 928.

Al2

This paragraph was substantially the same in all of the Stevens

Treaties,° and its language has been the subject of extensive

litigation in both state and federal court during much of the last

century. See, e.g., United States v. Winans, 198 U.S. 371, 25 S. Ct.

662, 49 L. Ed. 1089 (1905); Seufert Bros., 249 U.S. 194, 63 L. Ed.

555, 39 S. Ct. 203; Tulee v. Washington, 315 U.S. 681, 62 S. Ct.

862, 86 L. Ed. 1115 (1942); State v. Towessnute, 89 Wash. 478,

154 P. 805 (1916); State v. Wallahee, 143 Wash. 117, 255 P. 94

(1927); State v. McCoy, 63 Wn.2d 421, 387 P.2d 942 (1963); State

v. Chambers, 81 Wn.2d 929, 506 P.2d 311 (1973); State v. Petit,

88 Wn.2d 267, 558 P.2d 796 (1977); State v. Miller, 102 Wn.2d

678, 689 P.2d 81 (1984); Atwood v. Shanks, 91 Wn. App. 404, 958

P.2d 332 (1998); United States v. Alaska Packers' Ass'n, 79 F. 152

(N.D. Wash. 1897); United States v. Hicks, 587 F. Supp. 1162

. In some of the treaties the language with respect to shellfish is omitted. See,

e.g., Treaty Between the United States and the Walla-Walla, Cayuses, and

Umatilla Tribes and Bands of Indians in Washington and Oregon Termitories,

June 9, 1855, art. 1, 12 Stat. 945, 946 [hereinafter Treaty Between the Walla-

Wallas]; Treaty Between the United States and the Yakama Nation of

Indians, June 9, 1855, art. II], para. 2, 12 Stat. 951, 953 [hereinafter Treaty

Between the Yakamas]; Treaty Between the United States and the Nez Perc

Indians, June 11, 1855, art. II], para. 2, 12 Stat. 957, 958 [hereinafter Treaty

Between the Nez Perce]; Treaty Between the United States and the Flathead,

Kootenay and Upper Pend d'Oreilles Indians, July 16, 1855, art. III, para. 2,

12 Stat. 975, 976 [hereinafter Treaty Between the Flatheads]. In some the

privilege to hunt and gather roots and berries also includes the right to pasture

cattle and horses on open and unclaimed land. See, e.g., Treaty Between the

Walla-Wallas, 12 Stat. at 946; Treaty Between the Yakamas, 12 Stat. at 953;

Treaty Between the Nez Perce, 12 Stat. at 958; Treaty Between the United

States and the Qui-nai-elt and Quil-leh-ute Indians, Jan. 25, 1856, art. III, 12

Stat. 971, 972; Treaty Between the Flatheads, 12 Stat. at 976. The Treaty

between the United States and the Makah Tribe also secures to the tribe the

right of whaling or sealing at usual and accustomed grounds. Treaty Between

the United States and the Makah Tribe of Indians, Jan. 31, 1855, art. IV, 12

Stat. 939, 940.

LK

Al3

(W.D. Wash. 1984); United States v. Washington, 384 F. Supp.

312; United States y. Washington, 157 F.3d 630 (9th Cir. 1998):

State v. Arthur, 74 Idaho 25 1, 261 P.2d 135 (1953). See also

Wilkinson, Supra, at 447-48: Dana Johnson, Native American

Treaty Rights to Scarce Natural Resources, 43 U.C.L.A. L. Rey.

547, 552 (1995): Bradley I. Nye, Where Do the Buffalo Roam?

Determining the Scope of American Indian Off-Reservation

Hunting Rights in the Pacific Northwest, 67 Wash. L. Rev. 175

(1992); Laurie Reynolds, Indian Hunting and Fishing Rights: The

Role of Tribal Sovereignty and Preemption, 62 N.C. L. Rev. 743

(1984).

These authorities and others provide a framework for judicial

examination of the treaty language involved here.

Like any treaty between the United States and another sovereign

nation, a treaty with Indians is the supreme law of the land and is

binding on the State until Congress limits or abrogates the treaty.

U.S. CONST. art. VI; Antoine vy. Washington, 420 U.S. 194, 201, 95

S. Ct. 944, 43 L. Ed. 24 129 (1975); State v. McCormack, 117

Wn.2d 141, 143, 812 P.2d 483 (1991).

A treaty, including one between the United States and an Indian

tribe, is essentially a contract between two sovereigns. Fishing

Vessel, 443 U.S. at 675: State v Courville, 36 Wn. App. 615, 619

676 P.2d 1011 (1983). When the signatory nations are not at war

and neither is the vanquished, it is reasonable to assume the parties

bargained at arm's length. Fishing Vessel, 443 US 658 at 675, 61

L. Ed. 2d 823,99 $ Ct 3055. In discussing the negotiations

Al4

involved in another Stevens Treaty, that with the Nez Perce,

Professor Wilkinson states:

[T]he stereotype of Indian leaders at treaty talks as being

passive and overmatched intellectually is wrong.

The negotiators for the Nez Perce, and for the other tribes as

well, had a complete understanding of the situation. The white

people wanted their land, and had the population and

technology to take it. The tribes, on the other hand, had

considerable leverage: in time they would lose a military

campaign, but they could exact great costs in terms of human

life and monetary expenditures to fight a war on the fragile, far

edge of American terntory.

The calculus was about power, and the tnbes could make the

calculations as well as the white people. The tribal negotiators

were sophisticated and they used every technique and device

available to them. . . . They made their arguments precisely and

ably.

Wilkinson, supra, at 438 (footnotes omitted).

The goal of treaty interpretation is the same as the goal of

contract interpretation to determine the intent of the parties.

Fishing Vessel, 443 U.S. 658 at 675, 61 L. Ed. 2d 823, 99 S. Ct.

3055; United States v. Washington, 157 F.3d at 642. The analysis

of the parties’ intention begins with the language of the treaty and

the context in which the written words are used. United States v.

Washington, 157 F.3d at 642. In interpreting a treaty between the

United States and an Indian tribe, the treaty must "be construed,

not according to the technical meaning of its words to learned

lawyers, but in the sense in which they would naturally be

understood by the Indians." Fishing Vessel, 443 U.S. at 676

Al5

(quoting Jones vy. Meehan, 175 U.S. 1, 11, 20S. Ct. 1, 5, 44 L. Ed.

49 (1899)); Miller, 102 Wn.2d at 683.

Where there is ambiguity in the language of a treaty, it must not

be construed to the prejudice of the Indians. Minnesota v. Mille

Lacs Band of Chippewa Indians, __US. scommeap 8a9 O. CL 2187,

143 L. Ed. 2d 270 (1999); Antoine, 420 US. at 199; Miller, 102

Wn.2d at 683. However, courts may not ignore treaty language

that, viewed in its historical context and given a fair appraisal,

clearly runs counter to the tribe's claims. Oregon Dep't of Fish &

Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774, 105 S. Ct.

3420, 87 L. Ed. 2d 542 (1985); Department of Ecology v. Yakima

Reservation Irrigation Dist., 12] Wn.2d 257, 277, 850 P.2d 1306

(1993). Additionally, treaties must be construed liberally in favor

of Indians. Ecology, 121 Wn.2d at 277; State v. Price, 87 Wn.

App. 424, 429, 942 P.2d 377 (1997).

A key principle of treaty interpretation is known as the

"reservation of rights doctrine." F irst announced in United States y.

Winans, 198 U.S. 371, 49 L. Ed. 1089, 25 S. Ct. 662, a case

involving interpretation of a Stevens Treaty made with the Yakama

Indians,’ the reservation of rights doctrine holds that a treaty

between the federal government and an Indian tribe is not a grant

of nghts to the Indians but, rather, a grant from them. In other

words, the Indians ceded certain rights possessed by them at the

time of making the treaty but reserved whatever rights were not

7In i994, the Yakima Indian Nation adopted the spelling of Yakama. See State v.

Price, 87 Wn. App. 424, 425 n.1, 942 P.2d 377 (1997). This spelling is used

throughout this opinion when referring to the Yakama Nation, except where the

spelling "Yakima" appears in the title of an article or case.

Al6

expressly granted to the United States. Winans, 198 U.S. at 381.

See also Seufert Bros., 249 U.S. at 199; Fishing Vessel, 443 U.S. at

679-81; Wilkerson, supra, at 454-55.

Under the reservation of rights doctrine, tribal members have

possessed certain rights, such as hunting and fishing rights, from

time immemorial. A treaty between a tribe and the United States

documents a grant of some rights from the tribe to the federal

government. However, those rights not expressly ceded in the

treaty, as well as those expressly reserved, remain with the tribe.

Johnson, supra, at 553.

The reservation of rights doctrine has consistently been applied

to the fishing and hunting provisions of the Stevens Treaties. See,

e.g., Fishing Vessel, 443 U.S. at 679-81; Seufert Bros., 249 U.S. at

196.

The treaty language at issue here is the following:

The right of taking fish at usual and accusiorned grounds and

stations is further secured to said Indians . . . together with the

privilege of hunting . . . on open and unclaimed lands.

This court has interpreted the words "privilege" and "right," as

used in the treaty, to be synonymous. Miller, 102 Wn.2d at 683.

The United States Supreme Court has interpreted the treaty

language "securing" or "secured" rights to be synonymous with

"reserving" rights previously exercised. Fishing Vessel, 443 U.S.

at 678.

The State argues that the hunting right reserved by the treaty

was limited to the right previously exercised that is to the ceded

lands or to lands upon which the Nooksack Tribe traditionally

hunted. We agree.

Al7

The scope of a tribe's off-reservation hunting rights is generally

found in an Indian tribe's aboriginal use of or title to land and its

reservation of the right in a treaty, or by agreement, executive

order or statute. See generally FELIX S$. COHEN'S HANDBOOK OF

FEDERAL INDIAN LAW 441-46 (Rennard Strickland & Charles F.

Wilkinson eds., 1982). Mr. Nye explains the origin of the right as

follows:

Though hunting rights can arise from various sources, most

existing off-reservation hunting rights in the Pacific Northwest

were reserved by tribes in treaties signed with the federal

government between 1853 and 1871. Treaties were the primary

means by which the federal government sought to provide for

the orderly westward expansion of non-native society. In the

typical treaty, the signatory Indians relinquished their rights to

aboriginal lands in exchange for money and confinement to a

reservation with distinct boundaries.

The reservation system, in addition to minimizing

confrontations between encroaching settlers and the resident

Indians, was also intended to transform Indians into "a pastoral

and civilized people." As a result, game populations were not

one of the primary factors considered in the federal

government's choice of reservation lands, and many tribes were

removed to reservations located far from their traditional

hunting grounds. In response to a strong desire on the part of

tribes to retain access to these areas, treaties with Northwest

Indians provided for . . . "the privilege of hunting . . . on open

and unclaimed lands[.]" In essence, these treaty provisions

preserved a portion of the aboriginal rights exercised by the

signatory tribes.

Nye, supra, at 177-78 (footnotes omitted). See also Reynolds,

supra, at 752 (because the tribes could have reserved their

aboriginal hunting and fishing rights only on lands which they

actually hunted and fished at the time of the treaty, the primary

Al8

inquiry must determine whether the area allegedly protected by the

treaty formed part of the tribe's aboriginal territory).

To determine the existence of orginal Indian title to land,

and the nght to hunt and fish following from that title, courts

have generally required a showing of actual use and occupancy

over an extended period of time. In Mitchel v. United States [34

U.S. (9 Pet.) 711, 9 L. Ed. 283 (1835)] the United States

Supreme Court said:

Indian possession or occupation was considered with

reference to their habits and modes of life; their hunting

grounds were as much in their actual possession as the

cleared fields of the whites; and their nghts to its exclusive

enjoyment in their own way and for their own purposes were

as much respected, until] they abandoned them, made a

cession to the government, or an authonzed sale to

individuals.

In claims against the United States based upon original title, a

requirement of exclusive use and occupancy has been satisfied

by a showing that two or more tribes jointly or amicably hunted

in the same area to the exclusion of others. . . .

The existence of aboriginal hunting and fishing nghts,

however, does not necessarily turn upon the existence of

original title to lands and is not dependent upon recognition in a

treaty or act of Congress. Aboriginal rights remain in the

Indians unless granted to the United States by treaty,

abandoned, or extinguished by statute. When a treaty has been

signed, aboriginal use may still be important to determine the

extent of the nghts reserved under the treaty.

COHEN, supra, at 442-43 (footmotes omitted).

There is no evidence in the record on appeal to support a

finding that the Nooksack Tribe actually occupied or used, over an

extended penod of time, the Oak Creek Wildlife Area for hunting.

The only area which the record shows the Tribe clearly used for

Al9

hunting lies within the lands ceded to the United States in the

treaty.

Defendant Buchanan argues that the Tribe's right to hunt does

not depend on proof of aboriginal title or preexisting hunting

practices and grounds. Instead, he claims the hunting right is based

not on aboriginal title but on the treaty. In support of this

argument, Buchanan points to fishing rights cases which interpret

the phrase "usual and accustomed grounds and stations." These

cases, he argues demonstrate that the treaty right to hunt or fish

does not depend on aboriginal title or use. Buchanan additionally

argues that the treaty fishing nght is a limited one that permits

fishing only at the usual and accustomed places, but that the

hunting right is limited only to "open and unclaimed lands."

The treaty fishing right which was reserved by the Indians in

the Stevens Treaties has been interpreted to provide a broad night

to treaty tribes to fish outside of their ceded lands in all usual and

accustomed fishing areas, without regard to whether these areas

were part of the usual habitat of the tribe and without regard to

whether there had been consistent and exclusive use of the areas.

United States v. Washington, 384 F. Supp. at 332; Fishing Vessel,

443 U.S. at 666. The treaty fishing right has been interpreted as

insuring tribes a right to a fixed percentage of the number of

harvestable fish, United States v. Washington, 384 F. Supp. at 343,

and, further, interpreting the right as a permanent one, unless

abrogated by Congress. United States v. Washington, 384 F. Supp.

at 331-32.

A20

In contrast, the treaty hunting right, by its terms, is of a

temporary and self-limiting nature. The right was intended to

diminish as lands became settled, without the need of

congressional action. See, e.g., Hicks, 587 F. Supp. at 1165. The

treaty hunting clause contained in the Stevens Treaties has not

received the extent of analysis to which the fishing clause has been

subjected and, although State v. Chambers, 81 Wn.2d 929, 506

P.2d 311, noted that the defendant, a Yakama tribal member, killed

a deer on privately-owned property at least 40 miles from the

nearest territory ceded to the United States by the Yakamas in their

treaty, the issue now before us has not previously been squarely

addressed by this court. See also Hicks, 587 F. Supp. at 164.

The Supreme Courts of Idaho and Montana, interpreting

Stevens Treaties, have held the treaty right is a reserved right "to

hunt upon open and unclaimed land . . . at any time of the year in

any of the lands ceded to the federal government though such lands

are outside the boundary of their reservation." Arthur, 74 Idaho at

265; see also State v. Coffee, 97 Idaho 905, 556 P.2d 1185 (1976);

State v. Stasso, 172 Mont. 242, 563 P.2d 562 (1977) (relying on

the Idaho cases).

Mr. Nye provides the following analysis:

Treaty clauses reserving Indian mghts to hunt on "open and

unclaimed lands" . . . do ‘not expressly limit these mghts to

ceded lands. However, treaties were reservations of aboriginal

rights, and both the signatory tribes and the federal treaty

negotiators understood that rights of access would be limited to

traditional hunting grounds which remained "open and

unclaimed" or "unoccupied."

A21

. . . If the principles of treaty construction are strictly

followed . . . the right should be limited to the aboriginal

hunting grounds of the signatory Indians. This line of

demarcation should be based not on the treaty descriptions, but

on other evidence which better captures the understanding of

the Indians upon entering the treaty. Any line drawn must

necessarily be approximate, and the principles of treaty

interpretation require that any ambiguous questions be resolved

in favor of the Indians.

Nye, supra, at 190-91 (footnotes omitted).

The geographic scope of the hunting right cannot be resolved

from the language of the treaty alone. We hold that application of

the reservation of rights doctrine is the more legally sound

approach to interpreting the hunting rights provision of the Treaty

of Point Elliott. Under such an analysis, open and unclaimed lands

within the aboriginal hunting grounds of the Nooksack Tribe are

reserved under the treaty for hunting by tribal members, so long as

the lands remain open and unclaimed. The geographic area

available for hunting would certainly include the terntory ceded to

the United States and described in article I of the Treaty of Point

Elliott, and may include other areas if those areas are proven to

have been actually used for hunting and occupied by the Nooksack

Tribe over an extended period of time. Because the trial court did

not so limit the geographic scope of the Nooksack's treaty, we

reverse the dismissal of the charges against defendant Buchanan.

However, we hold that, on remand, the defendant should have the

Opportunity to prove that the Nooksack Tribe's abonginal hunting

grounds include the land within the Oak Creek Wildlife Area.

A22

We next consider whether the Oak Creek Wildlife Area is

“open and unclaimed land" under the meaning of the Treaty of

Point Elliott.

Under article 5 of the treaty, the Nooksack Tribe has a nght to

hunt on open and unclaimed lands. The United States Supreme

Court has held that the treaty nght to hunt, like the treaty nght to

fish, may only be regulated by the state "in the interest of

conservation, provided the regulation meets appropriate standards

and does not discriminate against the Indians." Antoine, 420 US.

at 207 (citing Puyallup Tribe v. Department of Game, 391 U.S.

392, 398, 88 S. Ct. 1725, 20 L. Ed. 2d 689 (1968)). The

“appropriate standards" requirement obligates the state to prove

that its regulation is a "reasonable and necessary conservation

measure, and that its application to the Indians is necessary in the

interest of conservation." Antoine, 420 U.S at 207 (citation

omitted); see also Miller, 102 Wn.2d at 688 n.5 ("We do not read

Antoine as giving Indians the exclusive right to hunt, but rather as

ensuring that their nght to hunt is not impaired for purposes other

than those of conservation.")

The trial court entered a finding of fact stating that the State had

not produced any evidence that the treaty tnbe hunters were

capable of having a significant impact on the elk population in the

Oak Creek area or in the State of Washington and, further, that the

State had failed to sustain its burden of proving that the application

of its regulations to Nooksack Indians or to Point Elliott Treaty

hunters is necessary for conservation. The State did not assign

error to this finding and, therefore, it is a verity on appeal. State v.

iia

A23

Smith, 130 Wn.2d 215, 223, 922 P.2d 811 (1996); State v.

Echeverria, 85 Wn. App. 777, 783, 934 P.2d 1214 (1997). The

question of whether the State's regulations, which closed the

hunting season, restricted the taking of antlered elk and established

a winter feeding station, are necessary conservation measures is

not properly before the court.

We limit our inquiry to whether the Oak Creek Wildlife Area is

open and unclaimed land within the meaning of the Treaty of Point

Elliott.

This court has Previously interpreted the meaning of "open and

unclaimed lands" as that term is used in Stevens Treaties in two

decisions. Under both decisions, publicly-owned lands are

considered "open and unclaimed." In Miller, 102 Wn.2d at 680 n.2,

the court held that national forest land is “open and unclaimed"

land within the meaning of the treaty. In Chambers, 81 Wn.2d at

936, this court approved a jury instruction defining "open and

unclaimed lands" as "lands which are not in private ownership."

These decisions are consistent with those of other jurisdictions

interpreting Stevens Treaties. See Stasso, 172 Mont. at 248

(national forest service lands that have not been patented to a

private person are open and unclaimed lands within the meaning of

a Stevens Treaty): Arthur, 74 Idaho at 261 (the term "open and

unclaimed" land as used in a Stevens Treaty was intended to

include and embrace such lands as were not settled and occupied

by the whites under possessory rights or patent or otherwise

appropriated to private ownership and may include national forest

reserve lands); Coffee, 97 Idaho 905, 556 P.2d 1185 (privately-

A24

owned land is not open and unclaimed within the meaning of a

Stevens Treaty); Confederated Tribes of Umatilla Indian

Reservation v. Maison, 262 F. Supp. 871 (D. Ore. 1966) (national

forests lands considered open and unclaimed under the terms of a

Stevens Treaty), aff'd sub nom. Holcomb v. Confederated Tribes

of Umatilla Indian Reservation, 382 F.2d 1013 (9th Cir. 1967). See

also Hicks, 587 F. Supp. at 1165 (trial court opined that the

construction of "open and unclaimed lands" that best

accommodates Indian hunting as settlement occurs and matures is

that "open and unclaimed lands" include public lands put to uses

consistent with an Indian hunting privilege).

The State, relying on Hicks, argues that once the hunting

regulations with respect to elk went into effect, the use of the Oak

Creek Wildlife Area for hunting was not a compatible use and,

therefore, the lands were not open and unclaimed. Our acceptance

of this argument would permit the State to avoid its burden of

proving that regulations imposed on Indian treaty hunters are

necessary for conservation purposes. See Miller, 102 Wn.2d at

688. The State has designated the Oak Creek Wildlife Area for use

for hunting, fishing and recreation. Limits on these activities in the

Oak Creek Wildlife Area are by State regulation. The regulations

must comply with standards developed by this court and the

United States Supreme Court, and be necessary for conservation if

the regulations are restrictive of treaty rights. The trial court's

A25

unchallenged finding in this case is that the State has not met its

burden in this regard.’ n8

The State also relies on State v. Cutler, 109 Idaho 448, 708 P.2d

853 (1985), *o support its argument that lands which are located in

a State- owned wildlife area which is operated as a wintering range

for elk and deer are not "open and unclaimed." The treaty

interpreted in Cutler was not a Stevens Treaty and the pertinent

language of the treaty provided the Indians had the right to hunt on

“unoccupied lands of the United States." The Cutler court held

that the state wildlife area, which was converted from a privately-

owned ranch, was "occupied" by the State of Idaho and that

sufficient indicia of occupancy existed (fences, signs, cattle guards,

cultivated fields, machinery, roads, campgrounds and buildings) to

put the Indian hunters on notice that the land was not "unoccupied

lands of the United States." Cutler, 109 Idaho at 454. The State

offered no evidence in this case that would bring it within the

rationale of Cutler.

rrom the rulings in the various cases which discuss the issue,

and in light of the treaty language, we discern that a general

Statement of the rule is that publicly-owned lands, which are not

obviously occupied and which are put to a use which is compatible

* Amicus Department of Fish and Wildlife additionally argues that the status of

the land changes as regulations of the State change to close, control, restrict or

otherwise put land to uses inconsistent with hunting. In essence, the Department

argues that the land is open and unclaimed for elk hunting during the State's elk

hunting season, but changes its status when State regulation closes the season in

that particular area. This argument ignores established law governing when a

State, by hunting regulations, can restrict treaty rights. See Antoine v. Washington,

420 U.S. 194, 206, 95 S. Ct. 944, 43 L. Ed. 2d 129 (1975); State v. McCormack,

117 Wn.2d 14], 143, 812 P.2d 483 (1991).

A26

with hunting, are "open and unclaimed lands" under the terms of

the Stevens Treaties. Treaty hunters have a right to hunt on such

lends. unrestricted by State regulation, unless the regulations are

necessary for conservation purposes. Miller, 102 Wn.2d 678, 689

P.2d 81. In this case, the Oak Creek Wildlife Area is publicly

owned, is obviously unoccupied, and its purposes are compatible

with and, in fact, include hunting. The tal court and Court of

Appeals correctly determined that the Oak Creek Wildlife Area is

open and unclaimed land.

Finally, the State urges this court to hold that the federal statute

creating the State of Washington and admitting the state "into the

Union on an equal footing with the original States," Act of

February 22, 1889, 25 Stat. 676, 678, impliedly abrogated the

treaty hunting nghts of Indians living in Washington.

In support of its argument the State primarily relies on Ward v.

Race Horse, 163 U.S. 504, 16 S. Ct. 1076, 41 L. Ed. 244 (1896), a

case in which the Supreme Court held that Congress, in admitting

Wyoming to the Union on equal footing with the onginal states,

effectively abrogated the Indian treaty hunting nghts of certain

treaty Indians in Wyoming. See also Crow Tribe of Indians v.

Repsis, 73 F.3d 982 (10th Cir. 1995) (applying Race Horse to

another treaty applicable to tribes residing within the State of

Wyoming); McCoy, 63 Wn.2d 421, 387 P.2d 942 (where this court

held the treaty fishing nghts of Indians who were parties to the

Treaty of Point Elliott were impliedly abrogated by Washington's

admission to the Union).

eA, ERED le

A27

After oral argument in this case, the United States Supreme

Court effectively overruled Race Horse in Minnesota v. Mille Lacs,

119 S. Ct. at 1211 (Rehnquist, C.J., dissenting) (noting the

majonty's "apparent overruling sub silentio" of Race Horse). The

Supreme Court rejected use of the equal footing language to find

an abrogation of Indian treaty rights, holding "treaty rights are not

impliedly terminated upon statehood." Mille Lacs, 119 S. Ct. at

1190.

This decision is consistent with the decisions over the past 100

years, since Race Horse was decided, in which the Supreme Court

has clarified and refined the law governing interpretation and

abrogation of Indian treaty hunting and fishing rights. In contrast

to the language in Race Horse, where the Court discussed the

treaty's "grant" of rights to the Indians, the Supreme Court now

views the grant as one from the Indians, with a reservation of

nghts not granted. Winans, 198 US. at 381; Fishing Vessel, 443

U.S. at 680. The Court has further stated that although Congress

has the sole power to eliminate a treaty right, South Dakota v.

Yankton Sioux Tribe, 522 U.S. 329, 118 S. Ct. 789, 798, 139 L. Ed.

2d 773 (1998), its intention to abrogate Indian treaty rights must be

clear and plain. United States y. Dion, 476 U.S. 734, 738, 106 S.

Ct. 2216, 90 L. Ed. 2d 767 (1986). Absent explicit statutory

language, the Court is "extremely reluctant" to find congressional

abrogation of treaty rights. Fishing Vessel, 443 U.S. at 690. It

therefore will not construe statutes as abrogating a treaty right in a

backhanded way but will require "clear evidence that Congress

actually considered the conflict between its intended action on the

A28

one hand and Indian treaty nghts on the other, and chose to resolve

that conflict by abrogating the treaty." Dion, 476 U.S. at 739-40.

Furthermore, the Supreme Court has undermined the premise

upon which Race Horse was decided by holding that "treaty nghts

to hunt, fish . . . are not irreconcilable with a State's sovereignty

over the natural resources in the State." Mille Lacs, 119 S. Ct. at

1204. Washington's enabling act, 25 Stat. 676 (1889), differs from

the statute admitting Wyoming to the Union, in that the statute

admitting Washington reserves from Washington the nght to

control lands owned or held by any Indian or Indian tnbe. 25 Stat.

676-77 (1889). This clause makes it clear that Congress had the

Indians' treaty mghts in mind when it created the State of

Washington, but did not go on to expressly abrogate the treaty

hunting nghts. Under Dion and Mille Lacs, we are unable to hold

that, in the enabling act, Congress impliedly abrogated Indian

treaty rights. Fishing Vessel, 443 U.S. at 690.

Reversed.

WE CONCUR: Barbara Durham; Charles Z. Smith; Charles W.

Johnson; Barbara A. Madsen; Gerry L. Alexander; Philip A.

Talmadge; Richard B. Sanders; Visiting Judge James M. Dolliver

-Bl-

STATE OF WASHINGTON. Appellant,

v.

DONALD RAY BUCHANAN, Respondent.

No. 15163-8-III

COURT OF APPEALS OF WASHINGTON

DIVISION THREE

87 Wash. App. 189; 941 P.2d 683

August 5, 1997, Filed

SCHULTHEIS, A.C.J. The Nooksack Indian Tribe is restricted

by an 1855 treaty to hunting open and unclaimed lands in the

Washington Territory. Donald Buchanan, a Nooksack tribal

member, was charged by information with possessing two elk out

of season and hunting in a wildlife area without a valid license.

The Yakima County Superior Court dismissed the charges on the

basis that he had a treaty mght to hunt in the wildlife area. On

appeal, the State contends the Nooksack tribe has no right to hunt

Outside their usual and customary hunting grounds, the wildlife

area is not open and unclaimed pursuant to the 1855 treaty, and

Washington’s admission to the Union after ratification of the treaty

abrogated the treaty. We affirm.

In January 1995, Mr. Buchanan, his brother and his uncle all

Nooksack tribe members were discovered by Department of

Fisheries and Wildlife (DF W) officers with two five-point elk. The

hunters had killed the elk in the Oak Creek Wildlife Area, owned

by the Washington Department of Natural Resources (DNR). By

State law, elk hunting in the Oak Creek area was closed at this

-B2-

time. When the season was open earlier in the fall, a special permit

was required to kill anything older than a “spike bull.”

In response to the DFW officers’ questions, Mr. Buchanan and

his relatives displayed their identification and elk tags issued by

the Nooksack tribe. Mr. Buchanan did not have a_ valid

Washington hunting license due to a prior elk hunting violation.

Although the hunters claimed they could hunt anywhere in the

state, the DFW officers understood that the Nooksack tribe had no

treaty rights east of the Cascade Mountains. The officers

impounded the elk as evidence and cited the hunters. Mr.

Buchanan was charged by information with two counts of

possession of big game during a closed season’ and one count of

hunting while licensed revoked.”

Mr. Buchanan moved for dismissal of the charges on the

ground that he was lawfully exercising his subsistence hunting

rights under the Point Elliott Treaty of 1855. At the hearing on the

motion in August 1995, the State argued that treaty rights were

limited to land ceded by the tribe and to normal and accustomed

hunting grounds. Additionally, the State asserted Mr. Buchanan

had violated Nooksack tribal regulations and state hunting

regulations that were applicable to treaty hunters. The supenor

court judge dismissed the charges. This appeal followed.

"RCW 77. 16.020(1); 77.21.010(1) (second or subsequent violation). This is a

class C felony with a maximum penalty of five years and/or a fine of $10,000.

RCW 9A.20.021.

? RCW 77.21 .060(2). This is a misdemeanor with a maximum penalty of 90 days

and/or a fine of $500. RCW 77.21.010(2).

-B3-

None of the facts related above are in dispute; what is disputed

is the trial court’s conclusion, as a matter of law, that Mr.

Buchanan had a treaty right to hunt in the Oak Creek Wildlife

Area. The State first argues the treaty reserved hunting rights only

on land ceded by the tribe, originally owned by the tribe, or on a

traditional tribal hunting ground.

A treaty between the United States and an Indian tribe is

essentially a contract between sovereign nations. Washington v.

Washington State Commercial Passenger Fishing Vessel Assn, 443

U.S. 658, 675, 99 S. Ct. 3055, 61 L. Ed. 2d 823, modified on other

grounds sub nom. Washington v. United States, 444 US. 816, 100

S. Ct. 34, 62 L. Ed. 2d 24 (1979). Ambiguous treaty language

must be resolved in favor of the Indians. Choctaw Nation y.

Oklahoma, 397 U.S. 620, 631, 90 S. Ct. 1328, 25 L. Ed. 2d 615

(1970); Department of Ecology v. Yakima Reservation Irrig. Dist.,

121 Wash. 2d 257, 277, 850 P.2d 1306 (1993). Further, treaty

language must »> construed, not according to its technical legal

meaning, but in the sense that would naturally be understood by

the Indians. Passenger F; ishing Vessel, 443 U.S. at 676.

In the Point Elliott Treaty of 1855, many western Washington

tribes, including the Nooksack,’ ceded land from the Puget Sound

area to the western summit of the Cascade Mountain range. In

return, the United States government in Article 5 of the treaty

secured the tribes rights of taking fish at usual and accustomed

. Although the Nooksack are not mentioned by name in the treaty, it has been

established that th. treaty pertains to them. United States y. Washington, 459 F.

Supp. 1020, 1041 (W.D. Wash. 1978).

-B4-

grounds and stations . . . together with the privilege of hunting and

gathering roots and berries on open and unclaimed lands. The Oak

Creek Wildlife Area lies east of the Cascades, outside the ceded

land.

Contrary to the States argument, the Point Elliott treaty, by its

express terms, does not limit hunting nghts to the ceded lands or to

traditional hunting grounds. Although fishing is reserved only on

usual and accustomed grounds and stations, hunting nghts extend

anywhere in the territory that is open and unclaimed. Cases cited

by the State are inapposite. In Oregon Dept of Fish & Wildlife v.

Klamath Indian Tribe, 473 U.S. 753, 105 S. Ct. 3420, 87 L. Ed. 2d

542 (1985), for example, the Supreme Court dismissed a tnbes

assertion that it was entitled to hunt and fish on ceded lands. The

treaty in question reserved no nights to hunt or fish outside the

reservation. Jd. at 755. The Point Elliott treaty, in contrast,

specifically reserves such rights. In United States v. Washington,

384 F. Supp. 312, 331 (W.D. Wash. 1974), affd, 520 F.2d 676 (9th

Cir. 1975), vacated sub nom. Passenger Fishing Vessel, 443 US.

658, 61 L. Ed. 2d 823, 99 S. Ct. 3055, the court construes language

similar to that found in the Point Elliott treaty: the nght of taking

fish, at all usual and accustomed grounds and stations .. . . Any

interpretation of that language requires a delineation of the

traditional fishing grounds. A reservation of the nght to hunt all

open and unclaimed lands, however, clearly does not limit hunting

to such traditional areas.*

* Strong v. United States, 207 Ct. Cl. 254, 518 F.2d 556 (Ct. Cl. 1975) is cited by

the State to support its contention that a tribe member must prove aboriginal title,

-B5-

This leads us to the interpretation of open and unclaimed lands

within the meaning of the treaty. The State contends the Oak Creek

Wildlife Area is no longer open and unclaimed because it is owned

by the government and Operated in the winter for purposes

inconsistent with hunting, citing United States y. Hicks, 587 F.

Supp. 1162, 1165-66 (W.D. Wash. 1984).

Several courts, including Washington’s, have determined that

¥

national park lands are open and unclaimed within the meaning of

treaties similar to Point Elliott. See, e.g., Confederated Tribes vy.

Maison, 262 F. Supp. 871, 873 (D. Or. 1966), affd sub nom.

Holcomb y. Confederated Tribes, 382 F.2d 1013 (9th Cir. 1967);

State v. Miller, 102 Wash. 2d 678, 680 n.2, 689 P.2d 81 (1984);

State v. Chambers, 81 Wash. 2d 929, 506 P.2d 311 (1973). Such

public lands, unoccupied by settlers, are open and unclaimed

insofar as they. are put to uses consistent with Indian hunting

privileges. Hicks, 587 F. Supp. at 1165.

The Olympic National Park, subject of the Hicks decision, was

permanently closed to elk hunting due to the governments interest

in protecting endangered Roosevelt elk populations. As such, the

parks purpose was inconsistent with Indian hunting rights and

therefore could not be considered open and unclaimed land. Hicks,

587 F. Supp. at 1166. Here, however, the Oak Creek Wildlife

Area is open to elk hunting periodically, so it passes the threshold

test of open and unclaimed land under the treaty.

i.€., actual, exclusive and continuous use of the land for a long time. Strong,

however, is a court of claims case wherein the Delaware and Shawnee tribes

demanded compensation for lands they claimed they relinquished in eighteenth

century treaties. Aboriginal title had to be proven in order to support the claims.

-B6-

Even so, Nooksack hunting nghts under the treaty are not

unlimited. Although the United States Supreme Court has

construed treaty rights broadly, protecting Indians from

encroachment by state governments, the court has also recognized

a states power to regulate game within its borders. Miller, 102

Wash. 2d at 681-82 (citing Menominee Tribe v. United States, 391

U.S. 404, 88 S. Ct. 1705, 20 L. Ed. 2d 697 (1968); Baldwin v. Fish

& Game Commn, 436 U.S. 371, 391, 98 S. Ct. 1852, 56 L. Ed. 2d

354 (1978); Antoine v. Washington, 420 U.S. 194, 206-07, 95 S.

Ct. 944, 43 L. Ed. 2d 129 (1975)). State wildlife regulations are

applicable to the tribes as long as the regulations meet certain tests:

the State has the affirmative burden of proving (1) the regulations

are reasonable and necessary for conservation purposes, and (2)

their application to Indians covered by the treaty is necessary for

conservation. Miller, 102 Wash 2d at 687. Within this context, a

necessary regulation is one required for the perpetuation of a

species of game within a certain zone. /d. at 687-88. A regulation

is reasonable if it is appropriate to its conservation purpose. /d. at

688.

As the trial court properly found here, the State did not meet its

burden of showing that the Oak Creek elk hunting regulations were

necessary as applied to the Nooksack tribe. The State did not

assign error to the courts findings that the tbe consists of no more

than 450 individuals, yet over 30,000 non-tribal hunters are

licensed to hunt in the Yakima area. No evidence was produced to

show the number of elk killed by tribal hunting or to show any

-B7-

impact of the tribe's subsistence and ceremonial hunting’ n5 on the

Oak Creek elk population. A DFW wildlife biologist testified that

although recent restrictions on hunting mature males were

designed to increase the number of bulls, there were no immediate

threats to the elk population.

On balance, the State failed to show that it was necessary to

apply the licensing restrictions to the Nooksack tribe in order to

perpetuate the Oak Creek elk population. Evidence offered on

appeal, that a winter feeding station in the area is necessary to

protect the elk, was not presented at trial and is not properly before

this court. Nelson y. McGoldrick, 127 Wash. 2d 124, 141, 896

P.2d 1258 (1995). At any rate, this evidence does not establish that

the closure to hunting by the Nooksacks is necessary to perpetuate

the species.

In its final argument, the State contends the Point Elliott treaty

was abrogated by Washington’s subsequent admission to the

Union. This argument was not presented to the trial court, is not

asserted to be of constitutional magnitude, and is not considered on

appeal. Richmond vy. Thompson, 130 Wash. 2d 368, 384, 922 P.2d

1343 (1996). In any event, it is settled that Washington’s

admission into the Union imposed on the state, equally with other

States, the obligation to observe and Carry out the provisions of

treaties of the United States. United States v. Washington, 384 F.

Supp. 312, 401 (W.D. Wash. 1974), affd, 520 F.2d 676 (9th Cir

* Nooksack tribal regulations restrict elk hunting to subsistence and ceremonial

needs, one elk per day and four elk per family each year. The State does not

contend on appeal that Mr. Buchanan violated the tribal hunting regulations.

-B8-

1975), vacated’ on other grounds sub nom. Washington v.

Washington State Commercial Passenger Fishing Vessel Assn, 443

U.S. 658, 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979).

Affirmed.

Thompson and Kurtz, JJ., concur.

Reconsideration denied September 2, 1997.

Review granted at 134 Wn.2d 1012 (1998).

Cl

Hon. Heather K. Van Nuys

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON FOR YAKIMA COUNTY

STATE OF WASHINGTON, )

)

Plaintiff. ) NO. 95-1-00124-]

)

V. )

) FINDINGS OF FACT AND

DONALD BUCHANAN ) CONCLUSIONS OF LAW

) SUPPORTING ORDER

Defendant. ) AND JUDGMENT OF

) DISMISSAL

THIS MATTER having come on regularly for hearing

before the undersigned Judge of the above-entitled court on August

17, 1995, the plaintiff State of Washington appearing by and

through Yakima County Deputy Prosecutor Kenneth L. Ramm, the

defendant appearing personally and by and through his attorney,

David S. Vogel, and the court having examined the records and

files herein and having considered defendant’s Motion to Dismiss

and attached exhibits; the five treaties submitted to the court by

defendant (Potowatomi Treaty 1826, Miami Treaty 1826,

Chippewa Treaty 1829, Pawnee Treaty 1833, Ottawa Treaty

1836); the testimony of Department of Fisheries and Wildlife

(“DFW”) Enforcement Officer Robert Lamb; the testimony of

DFW Regional Wildlife Biologist Roger McKeel: and the

C2

supuiated ‘tesumony vi defentarf Durdd Bueraran, wd ‘veny

fully advised, makes and enters the following:

FINDINGS OF FACT

l. On January 6, 1995, defendant Donald Buchanan, his

brother Albert and uncle Randy Ross were stopped by DFW

enforcemeni officers with two recently killed branch-antlered bull

elk in their possession on land owned by the Washington

Department of Natural Resources (“DNR”), east of the summit of

the Cascade range, 4.3 miles up the 1400 road of Oak Creek. As

Buchanan explained to the officers at the time, he is an enrolled

member of the Nooksack Indian Tribe, and was hunting for

subsistence purposes.

2. At the time of the alleged offense, Buchanan’s non-tnbal

hunting privileges were revoked, and the non-tribal season was

closed. Buchanan was charged with two counts of violating RCW

77.16.020(1)(E), which prohibits possessing big game during the

closed season, and one count of violating RCW 77.21.60(2), for

hunting while his Washington hunting license was revoked.

During the preceding non-tnbal season hunters were not allowed to

kill branch-antlered elk without a special permit.

; The Nooksak Indian Tribe, which is a party to the Point

Elliott Treaty of 1855!, has approximately 450 enrolled members.

The Nooksak Tnbe regulates hunting by its members through its

Hunting Regulations and Hunting Code. The 1994-95 Hunting

Regulations have a combined bag limit for deer and elk of four

C3

‘writs per ‘nouse for subsistence purposes. At the time of the

alleged offense, defendant Buchanan possessed valid tribal tags to

hunt branch-antlered bull elk for subsistence purposes in the area

in question. Buchanan told the DFW officers that he was hunting

pursuant to his tribal rights under the Point Elliott Treaty. There is

no evidence that the defendant was hunting for any non-

subsistence purpose.

4. Article V of the Point Elliott Treaty, which has never been

abrogated, reads in part:

The right of taking fish at usual and accustomed

grounds and stations is further secured to said

Indians in common with all citizens of the

Territory, and of erecting temporary houses for the

purpose of curing, together with the privilege of

hunting and gathering roots and berries on open

and unclaimed lands; provided, however, that they

shall not take shell fish from any beds stated or

cultivated by citizens.

5. Prior to its drafting the Point Elliott Treaty, the United

States Government had drafted numerous treaties with Indian

Tribes and Nations. In a number of these treaties, including the

Potowatomi Treaty 1826 (Article 7), Miami Treaty 1826 (Article

8), Chippewa Treaty 1829 (Article VII), Pawnee Treaty 1833

(Article II), and Ottawa Treaty 1836 (Article Thirteenth), the

hunting privileges of the Indians were restricted to the lands ceded

by the Indians to the United States. The terms of the Point Elliott

| This fact was established in United States v. Washington, 459 F. Supp.

1020, 1041 (W.D. Wash. 1978).

C4

Treaty of 1855 restnct the privilege of hunting to “open and

unclaimed lands” in the Territory of Washington but do not restrict

tribal hunting to ceded lands.

6. The language of the Point Elliott Treaty geographically

restricts the nght of taking fish to “usual and accustomed grounds

and stations,” but does not geographically limit the privilege of

hunting to traditional hunting grounds.

7. The Oak Creek area is east of the territory ceded to the

United States by the Nooksak Indian Tribe under the Point Elliott

Treaty. The ceded terntory is bordered on the east by the summit

of the Cascade range.

8. The DNR land in the Oak Creek area where Buchanan was

cited is within DFW’s Bethel Hunting Unit 360 in Yakima County.

It is publicly-owned land kept open to the public for hunting,

fishing, and recreational purposes. All of the uses to which this

land is put are compatible with Indian hunting. For purposes of the

Point Elliott Treaty, it must be considered “open and unclaimed.”

9. According to statistics kept by DFW, there are presently

about 97,000 non-tribal licensed elk hunters in the State of

Washington, and more than 30,000 of these hunt in the Yakima

area. The State did not produce any information regarding the

number of tribal hunters in the State of Washington, the number

Point Elliott Treaty hunters in the State, or the number of hunters

in the Nooksak Tribe. The State did not produce any evidence

regarding the number of elk kills by tribal hunters in the State of

Washington, by Point Elliott Treaty hunters, or by hunters in the

Nooksak Tribe. There was not sufficient evidence that Nooksak

C5

hunters or Point Elliott Treaty hunters, hunting for subsistence or

ceremonial purposes, can have a Significant impact on the elk

population in the Oak Creek or Yakima County area.

10. On March 17, 1995, two members of the Yakama Indian

Nation killed a branch-antlered bull elk nearby where Buchanan

was cited. After that incident, Bob Schafer, Yakima regional chief

enforcement officer (a speaking agent) for DFW Stated, “Tribal

hunters actually kill very few elk off the reservation, and that

number is really inconsequential to management purposes.”

According to the testimony of DFW Regional Wildlife Biologist

Roger McKeel, there is no immediate threat to the preservation of

the elk population in Bethe] Hunting Unit 360.

11. Insofar as the State has not produced any evidence that

either the Nooksak hunters or all of the Point Elliott Treaty hunters

are capable of having a significant impact, when hunting for

subsistence or ceremonial purposes, on the elk population in the

Oak Creek area, the Yakima County area, or in the State of

Washington, the State has failed to sustain its burden of proving

that the application of its regulations to Nooksak Indians or to

Point Elliott Treaty hunters is necessary for conservation.

CONCLUSIONS OF LAW

l. Washington State is bound by the supremacy clause of the

United States Constitution (Art. VI, cl. 2) to respect the terms of

the Point Elliott Treaty of 1855, which has never been abrogated

by the Federal Government. See Antoine v. Washington, 420 US.

194, 204, 43 L. Ed. 2d 129, 95 S.Ct. 944 (1975); State v. Miller,

102 Wn. 2d 678, 681, 689 P.2d 81 (1984).

C6

a In interpreting Indian treaties, courts are required to

construe the treaties liberally in favor of the Indians. Choctaw

Nation v. United States, 318 U.S. 423, 431-32, 87 L. Ed. 2d 877,

63 S.Ct. 672 (1943). Ambiguous treaties must be resolved in favor

of Indians. Winters v. United States, 207 U.S. 564, 576-77, 52 L.

Ed. 340, 28 S. Ct. 207 (1908); Ecology v. Yakima Reservation

Imig. Dist., 121 Wn.2d 257, 277, 850 P.2d 1306 (1993).

a The Point Elliott Treaty of 1855 restricts the privilege of

hunting to “open and unclaimed lands” in the Territory of

Washington but does not restrict tribal hunting to ceded lands and

does not geographically limit the privilege of hunting to traditional

hunting grounds. The language of this treaty must be contrasted

with the language of the treaties referred to in this Court’s Finding

of Fact 5, which specifically restricted the hunting privileges of the

Indians to the ceded lands. Moreover, the treaty’s restriction on

the right of taking fish “at usual and accustomed grounds and

stations” does not apply to the privilege of hunting. See State v.

Chambers, 81 Wn. 2d 929, 935-36, 506 P.2d 311 (1973); United

States v. Washington, supra, 384 F. Supp at 350-51 (Finding of

Fact 4); State v. Tinno, 497 P.2d 1386, 1391, 1393, 1395 (Idaho

1972). In construing this treaty pursuant to the above-stated rules

of interpretation, this Court cannot add geographic restrictions that

were not included in the language of the treaty.

4. “Open and unclaimed lands” include public lands, such as

the DNR land involved in this case, put to uses compatible with an

Indian hunting privilege. United States v. Hicks, 587 F. Supp.

1162, 1165 (W.D. Wash. 1984).

C7

5. The State Department of Fisheries and Wildlife can

regulate Indian hunting pursuant to the police power if the State

can affirmatively demonstrate that at the time the treaty hunting

right was asserted by the defendant: (1) the regulations at issue

were both reasonable and necessary for conservation; and (2) the

regulations’ application to Indians covered by the treaty was

necessary to conservation. A “necessary” regulation, within this

context, is a regulation required for the perpetuation of a species of

game within a certain zone. A regulation is reasonable if it is

appropriate to its conservation purpose. State v. Miller, 102

Wn.2d 678, 687-88, 689 P.2d 8] (1984); see United States v.

Washington, 384 F. Supp. 312, 342, 402-404 (W.D. Wash. 1974),

aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086

(1976); see also Antoine v. Washington, supra, 420 U.S. at 207:

Felix S. Cohen’s Handbook of Federal Indian Law 461 (1982).

ee RONEN s Fanddook of Federal Indian Law

6. The State of Washington has failed to demonstrate that

application of the hunting regulations at issue in this case to the

Nooksak Indian hunters or to the Point Elliott Treaty hunters was

Or is necessary for conservation.

xp Defendant was validly exercising his privilege to hunt

under the Point Elliott Treaty of 1855, so the charges against him

must be dismissed.

DATED this 17th day of November, 1995.

Honorable Heather K. Van Nuys

(This Page Intentionally Left Blank)

D1

THE SUPREME COURT OF WASHINGTON

STATE OF WASHINGTON, )

)

Appellant, ) NO.66054-9

)

v. ) ORDER DENYING

) MOTION FOR

DONALD RAY BUCHANAN, ) RECONSIDERATION

)

Respondent. _)

)

)

)

The Court having considered the Respondent’s Motion for

Reconsideration;

Now, therefore, it is hereby

ORDERED:

That the Respondent’s Motion for Reconsideration is denied.

DATED at Olympia, Washington this _3™ day of August, 1999.

/s/Smith, J,

for CHIEF JUSTICE

(This Page Intentionally Left Blank)

El

TREATY WITH THE DWAMISH, SUQUAMISH, ETC.,

(TREATY OF POINT ELLIOTT)

Jan. 22, 1855

Articles of agreement and convention made and concluded at

Muckl-te-6h, or Point Elliott, in the Territory of Washington, this

twenty-second day of January, eighteen hundred and fifty-five, by

Isaac I. Stevens, governor and superintendent of Indian affairs for

the said Territory, on the part of the United States, and the

undersigned chiefs, head-men and delegates of the Dwamish,

Suquamish, Sk-tahl-mish, Sam-ahmish, Smalh-kamish, Skope-

ahmish, St-kah-mish, Snoqualmoo, Skai-wha-mish, N’Quentl-ma-

mish, Sk-tah-le-jum, Stoluck-wha-mish. Sno-ho-mish, Skagit,

Kik-i-allus, Swin-a-mish, Squin-dh-mish, Sah-ku-méhu, Noo-wha-

ha, Nook-wa-chah-mish, Mee-sée-qua-guilch, Cho-bah-ah-bish.

and other allied and subordinate tribes and bands of Indians

occupying certain lands situated in said Territory of Washington,

on behalf of said tribes, and duly authorized by them.

ARTICLE 1. The said tribes and bands of Indians hereby

cede, relinquish, and convey to the United States all their right,

title, and interest in and to the lands and country occupied by

them, bounded and described as follows: Commencing at a point

on the eastern side of Admiralty Inlet, known as Point Pully, about

midway between Commencement and Elliott Bays; thence

eastwardly, running along the north line of lands heretofore ceded

to the United States by the Nisqually, Puyallup, and other Indians,

to the summit of the Cascade range of mountains; thence

northwardly, following the summit of said range to the 49%

E2

parallel of north latitude; thence west, along said parallel to the

middle of the Gulf of Georgia; thence through the middle of said

gulf and the main channel through the Canal de Arro to the Straits

of Fuca, and crossing the same through the middle of Admiralty

Inlet to Suquamish Head; thence southwesterly, through the

peninsula, and following the divide between Hood’s Canal and

Admiralty Inlet to the portage known as Wilkes’ Portage; thence

northeastwardly, and following the line of lands heretofore ceded

as aforesaid to Point Southworth, on the western side of Admiralty

Inlet, and thence around the foot of Vashon’s Island eastwardly

and southeastwardly to the place of beginning, including all the

islands comprised within said boundanes, and all the nght, title,

and interest of the said tribes and bands to any lands within the

territory of the United States.

ARTICLE 2. There is, however, reserved for the present use

of occupation of the said tribes and bands the following tracts of

land, viz: the amount of two sections, or twelve hundred and

eighty acres, surrounding the small bight at the head of Port

Madison, called the Indians Noo-sohk-um; the amount of two

sections, or twelve hundred and eighty acres, on the north side

Hwhomish Bay and the creek emptying into the same called

Kwilt-seh-da, the peninsula at the southeastern end of Perry’s

Island, called Shais-quihl, and the island called Chah-choo-sen,

situated in the Lummi River at the point of separation of the

mouths emptying respectively into Bellingham Bay and the Gulf

of Georgia. All which tracts shall be set apart, and so far as

necessary surveyed and marked out for their exclusive use; nor

E3

shall any white man be permitted to reside upon the same without

permission of the said tribes or bands, and of the superintendent or

agent, if necessary for the public convenience, roads may be

run through the said reserves, the Indians being compensated for

any damage thereby done them.

ARTICLE 3. There is also reserved from out the lands

hereby ceded the amount of thirty-six sections, or one township of

land, on the northeastern shore of Port Gardner, and north of the

mouth of Snohomish River, including Tulalip Bay and th« vefore-

mentioned Kwilt-seh-da Creek, for the purpose of establishing

thereon an agricultural and industrial school, as hereinafter

mentioned and agreed, and with a view of ultimately drawing

thereto and settling thereon all the Indians living west of the

Cascade Mountains in said Territory. Provided, however, That the

President may establish the central agency and general reservation

at such other point as he may deem for the benefit of the Indians.

ARTICLE 4. The said tribes and bands agree to remove to

and settle upon the said first above-mentioned reservations within

one year after the ratification of this treaty, or sooner, if the means

are furnished them. In the mean time it shal] be lawful for them to

reside upon any land not in the actual claim and occupation of

citizens of the United States, and upon any land claimed or

occupied, if with the permission of the owner.

ARTICLE 5. The right of taking fish at usual and

accustomed grounds and stations is further secured to said Indians

in common with all citizens of the Territory, and of erecting

temporary houses for the purpose of curing, together with the

E4

privilege of hunting and gathering roots and bernes on open and

unclaimed lands. Provided, however, That they shall not take

shell-fish from any beds staked or cultivated by citizens.

ARTICLE 6. In consideration of the above cession, the

United States agree to pay to the said tnbes and bands the sum of

one hundred and fifty thousand dollars, in the following manner—

that is to say: For the first year after the ratification hereof, fifteen

thousand dollars; for the next two year, twelve thousand dollars

each year; for the next three years, ten thousand dollars each year;

for the next four years, seven thousand five hundred dollars each

years; for the next five years, six thousand dollars each year; and

for the last five years, four thousand two hundred and fifty dollars

each year. All which said sums of money shall be applied to the

use and benefit of the said Indians, under the direction of the

President of the United States, who may, from time to time,

determine at his discretion upon what beneficial objects to expend

the same; and the superintendent of Indian affairs, or other proper

officer, shall each year inform the President of the wishes of said

Indians in respect thereto.

ARTICLE 7. The President may hereafter, when in his

opimon the interests of the Territory shall require and the welfare

of the said Indians be promoted, remove them from either or all of

the special reservations hereinbefore made to the said general

reservation, or such other suitable place within said Territory as he

may deem fit, on remunerating them for their improvements and

the expenses of such removal, or may consolidate them with other

friendly tribes or bands; and he may further at his discretion cause

ES

the whole or any portion of the lands hereby reserved, or of such

other land as may be selected in lieu thereof, to be surveyed into

lots, and assign the same to such individuals or families as are

willing to avail themselves of the privilege, and will locate on the

same as a permanent home on the same terms and subject to the

same regulations as are provided in the sixth article of the treaty

with the Omahas, so far as the same may be applicable. Any

substantial improvements heretofore made by any Indian, and

which he shall be compelled to abandon in consequence of this

treaty, shall be valued under the direction of the President and

payment made accordingly therefor.

ARTICLE 8. The annuities of the aforesaid tribes and bands

shall not be taken to pay the debts of individuals.

ARTICLE 9. The said tribes and bands acknowledge their

dependence on the Government of the United States, and promise

to be friendly with all citizens thereof, and they pledge themselves

to commit no depredations on the property of such citizens.

Should any one or more of them violate this pledge, and the fact

be satisfactorily proven before the agent, the property taken shall

be returned, or in default thereof, of if injured or destroyed,

compensation may be made by the Government out of their

annuities. Nor will they make war on any other tribe except in

self-defence, but will submit all matters of difference between

them and the other Indians to the Government of the United States

or its agent for decision, and abide thereby. And if any of the said

Indians commit depredations on other Indians within the Terntory

the same rule shall prevail as that prescnibed in this article in cases

E6

of depredations against citizens. And the said tribes agree not to

shelter or conceal offenders against the laws of the United States,

but to deliver them up to the authonties for trial.

ARTICLE 10. The above tnbes and bands are desirous to

exclude from their reservations the use of ardent spirits, and to

prevent their people from drinking the same, and therefore it is

provided that any Indian belonging to said tnbe who is guilty of

bringing liquor into said reservations, or who drinks liquor, may

have his or her proportion of the annuities withheld from him or

her for such time as the President may determine.

ARTICLE 11. The said tribes and bands agree to free all

slaves now held by them and not to purchase or acquire others

hereafter.

ARTICLE 12. The said tribes and bands further agree not to

trade at Vancouver's Island or elsewhere out of the dominions of

the United States, nor shall foreign Indians be permitted to reside

in their reservations without consent of the superintendent or

agent.

ARTICLE 13. To enable the said Indians to remove to and

settle upon their aforesaid reservations, and to clear, fence, and

break up a sufficient quantity of land for cultivation, the United

States further agree to pay the sum of fifteen thousand dollars to

be laid out and expended under the direction of the President and

in such manner as he shall approve.

ARTICLE 14. The United States further agree to establish at

the general agency for the district of Puget’s Sound, within one

year from the ratification hereof, and to support for a period of

E7

twenty years, an agricultural and industrial school, to be free to

children of the said tribes and bands in common with those of the

other tribes of said district, and to provide the said school with a

suitable instructor or instructors, and also to provide a smithy and

carpenter’s shop, and furnish them with the necessary tools, and

employ a blacksmith, carpenter, and farmer for the like term of

twenty years to instruct the Indians in their respective occupations.

And the United States finally agree to employ a physician to reside

at the said central agency, who shall furnish medicine and advice

to their sick, and shall vaccinate them: the expenses of said school,

shops, persons employed, and medical attendance to be defrayed

by the United States, and not deducted from the annuities.

ARTICLE 15. This treaty shall be obligatory on the

contracting parties as soon as the same shall be ratified by the

President and Senate of the United States.

In testimony whereof, the said Isaac I. Stevens, governor and

superintendent of Indian affairs, and the undersigned chiefs,

headmen, and delegates of the aforesaid tnbes and bands of

Indians, have hereunto set their hands and seals, at the place and

on the day and year hereinbefore written.

Isaac I. Stevens, Governor and Superintendent. [L.S.]

82 Named chiefs, headmen and delegates of the aforesaid

tribes and bands of Indians affix their x marks. [L.S. x 82]

(This Page Intentionally Left Blank)

Fl

EXCERPTS OF TREATIES

TREATY WITH THE POTAWATOMIL, 1826

ARTICLE 7.

The Potawatomie Indians shall enjoy the right of

hunting upon any part of the land hereby ceded, as long

as the same shall remain the property of the United

States.

TREATY WITH THE MIAMI, 1826

ARTICLE 8.

The Miami tribe shall enjoy the right of hunting upon

the land herein conveyed, so long as the same shall be

the property of the United States.

TREATY WITH THE CHIPPEWA, ETC., 1829

ARTICLE VII.

The nght to hunt on the lands herein ceded, so long as

the same shall remain the property of the United States,

is hereby secured to the nations who are parties to this

treaty.

TREATY WITH THE PAWNEE, 1833

ARTICLE II.

The land ceded and relinquished hereby, so far as the

Same is not and shall not be assigned to any tribe or

tribes, shall remain a common hunting ground, during

the pleasure of the President, for the Pawnees and other

friendly Indians, who shall be permitted by the President

to hunt on the same.

F2

TREATY WITH THE OTTAWA, ETC., 1836.

ARTICLE THIRTEENTH.

The Indians stipulate for the nght of hunting on the

lands ceded, with the other usual privileges of

occupancy, until the land is required for settlement.

Gl

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Court File No. 3-94-1226

Mille Lacs Band of Chippewa Indians

Arthur Gahbow, Walter, Sutton,

Carleen Benjamin, and Joseph Dunkley

Plaintiffs, MEMORANDUM!

OPINION AND ORDER

United States of America,

(Filed Mar. 1996)

Plaintiff-Intervenor,

St. Croix Chippewa Indian, et al.,

Lac Du Flambeau Band, et al.

Bad River Bank of Lake Superior, et al.

Lac Courte Oreilles Indians, et al.

Sokaogan Chippewa Community, et al.

Red Cliff Band of Lake Superior, et al.

Plaintiff-Intervenors,

V.

State of Minnesota, Minnesota Department of Natural

Resources, and Rod Sando, Commissioner of Natural Resources,

Defendants,

County of Aitkin, Benton, et al.,

John W. Thompson, et al.

Defendant-Intervenors,

Save Lake Mille Lacs Association,

Amicus Curiae

' Unedited Excerpt of Opinion

G2

13. Right of Wisconsin Bands to Exercise Usufructuary

Rights in Minnesota

The Landowners and the Counties argue that the Wisconsin

Bands do not hold usufructuary nghts in the Minnesota portion of

the 1837 ceded termtory because none of the Wisconsin Bands

used and occupied the area at treaty times. The Wisconsin Bands

contend that the treaty expressly guarantees all the signatory bands

the privilege of hunting, fishing and gathering throughout the

ceded terntory and that nothing in the treaty suggests that a

particular band must prove its historical use of a particular portion

of the ceded territory before exercising its mghts there.

The Landowners and Counties do not, and cannot, point to

any language in the 1837 Treaty that limits the usufructuary nghts

granted to certain areas within the ceded termtory. Nor does the

case law support the argument.

The power of Congress to establish or recognize nghts or

reservations for Indian tnbes does not derive from the Indians’

aboriginal title to lands, it denves from the Constitution. See

Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87-88

(1981); Voigt, 700 F.2d at 352. The Counties’ reliance on

Winans, supra, Suefert Bros. Co. v. United States, 249 U.S. 753

(1919) and United States ex rel Charlie v. McGowan, 62 F.2d 955,

aff'd 290 U.S. 592 (1933) is misplaced as those cases involved

treaties that granted rights for the taking of fish “at all the usual

and accustomed grounds and stations.” As this language suggests,

G3

the rights granted under these treaties was limited to those areas

historically used by the Indians.

In this case, the 183’ weaty Only limited the exercise of

usufructuary nights to area’ »*hin the ceded territories. The treaty

does not contain any language restricting the right to hunt, fish or

gather within certain areas within the ceded territory.

As noted by the Bands in opposition to this motion, in the

Voigt litigation the court has recognized the bands’ night to hunt,

fish and gather throughout the entire ceded territory, and that no

restrictions have been placed upon the bands as to historic use or

occupancy on their usufructuary rights. In Lac Courte Oreilles

Chippewa Indians v. State of Wisconsin, 653 F.Supp. 1420, 1424

(W.D. Wis. 1987), the court recognized that the Chippewa were

divided into separate bands and such bands occupied a fairly

distinct territory.

The territories were based on use by a family or a group

of families or by the natural resources of the territory.

The roving habits of the Chippewa as a whole and the

Chippewa’s territoriality tended to disperse the Indian

population in the ceded territory while avoiding the

exhaustion of natural resources. This dispersal

diminished, however, as the Chippewa became

increasingly involved in trade.

* * *

As among Chippewa members, the Chippewa economy

was a system of reciprocity. An important element of

this system was sharing. The scarcer a resource became,

the more willing the Chippewa were to share it.

G4

And in Lac Courte Oreilles Chippewa Indians v. State of

Wisconsin, 740 F.Supp. 1400, 1418 (W.D. Wis. 1990), with

respect to allocation of resources, the court held that the Indians

were required to take their 50% share throughout the ceded

territory — that they could not concentrate in a particular area.

The Landowners’ assert a number of arguments in support of

this motion without legal support. The Court has reviewed the

arguments and finds they have no merit. Absent clear language

limiting the Chippewa to exercise their usufructuary nghts only in

the areas they occupied, this motion must be denied.

IT IS HEREBY ORDERED that:

l. Magistrate Judge Lebedoff’s Order dated July 24, 1995 is

AFFIRMED.

Date: 3-29-96

‘s’ Michael J. Davis

Judge Michael J. Davis

United States Distnct Court

H1

FISH AND WILDLIFE COMMISSION

POLICY DECISION’

POLICY TITLE: Tribal Hunting Coordination

POLICY NUMBER: _ C-3607

Cancels: N/A Effective Date: April 3, 1998

Termination Date (if applicable): N/A

See Also: Approved by:

The Washington Fish and Wildlife Commission acknowledges and

respects the sovereign status of Washington’s federally recognized

tnbes. The overlapping nature of state and tribal jurisdiction and

responsibilities cerates a co-management relationship in which it is

essential that the parties work together. The Commission

recognizes that the preservation of healthy, robust, and diverse fish

and wildlife populations is largely dependent on the state and the

tribes working in a cooperative and collaberative manner. The

Washington Fish and Wildlife Commission is committed to a

cooperative management relationship with the tribes. In the spint

of these acknowledgments, the Commission adopts the following

policies to guide Department staff in their relationships with the

tribes:

1. The Department of Fish and Wildlife will work cooperatively

with representatives of each tribal government in an effort to

This Policy Decision was attached as App. F to the amicus brief filed by

“Several Treaty Tribes In Support of Respondent” in the Washington Supreme

Court

to

tod

H2

resolve all issues through direct communication and

negotiation.

The Department of Fish and Wildlife supports tribal self-

regulation and determination.

The Department of Fish and Wildlife will engage tribal

representatives in its decision making processes relative to

wildlife management issues that affect tibal hunting.

The Department of Fish and Wildlife commits to work jointly

with the tribes in the development of an information and data

exchange system that enhances the parties’ ability to

effectively communicate and collectively identify resource

and hunting issues and concerns.

The Department of Fish and Wildlife, in cooperation with

tribal governments, will develop enforcement protocols to

guide Department officers in their contact with tribal hunters.

Il

The [Tacoma] News Tribune

Published: 01-16-98

Page B1

COURT RULING ON HUNTING BRINGS TRIBES, STATE TO

TABLE / OFFICIALS FROM BOTH SIDES GATHER IN

SEATAC TO TALK ABOUT WORKING TOGETHER TO

MANAGE DEER AND ELK

Byline: Rob Carson; The News Tribune

State wildlife officials met with representatives of 30

Northwest Indian tnbes Thursday to begin working on new

hunting management agreements that are expected to give Indian

hunters broad new freedom in when and where they kill deer and

elk.

After the 5-hour meeting - which was closed to the public -

participants said they had covered only preliminaries and had not

resolved how the state and tnbes will manage big-game

populations and work across jurisdictions to control hunters.

"This was the first of what we hope will be a number of

meetings with tribal delegates," said Bern Shanks, director of the

state Department of Fish and Wildlife. "We're beginning to do

something we should have done a long time ago - work together

and build a day-to-day relationship."

Shanks said the private meeting with the tribes was prompted

by a state appeals court opinion holding that 19th-century treaties

give tribal members the nght to hunt on open and unclaimed land

anywhere in the state - not just on their own reservations.

State restrictions on when and where hunting may occur, and

on what types of animals may be taken, do not necessarily apply to

the tnbes, a three-judge appeals panel said in an August review of

a Yakima County Superior Court decision.

At the request of the tribes, Thursday's meeting - at the

Holiday Inn in SeaTac - was open to invited participants only.

About 80 tnbal representatives, their attorneys and two dozen

wildlife department officials attended, but news reporters and

members of the public were turned away at the door.

12

The fact that non-Indian hunters were not allowed a voice at

the meeting infuriated some non-Indian hunters, who fear

unrestricted Indian hunting will destroy the state's deer and elk

herds.

One non-Indian hunter excluded from the meeting, James

Brummett of Kent, appeared at the hotel dressed as General

George Custer. He carried a sign that read, "Will the deer and elk

go the way of the buffalo?" "General Custer died for his cause,"

Brummett said. "I'm willing to die for my cause - to protect the

deer and the elk."

Brummett, wearing shoulder-length blond hair and a buckskin

suit, was wrapped in chains and padlocks. He threatened to chain

himself inside the meeting room in protest, but after about 15

minutes he allowed himself to be escorted away by SeaTac police.

After the meeting, tribal representatives said they were at least

as concerned as state officials about the health of the elk herds and

have no intention of allowing their members to endanger the

resource. Rick Peters, natural resources director of the Squaxin

Island Tribe, said the appeals courts' decision recognizes a nght

that predated the treaties - and that the tribes never gave up.

"But it also gives the tnbes the responsibility to formulate

good tribal hunting management plans," Peters said.

The decision, known as the Buchanan case, involved a

member of the Nooksack Tnbe - Donald Buchanan - who was

charged with possessing two elk out of season and hunting in a

state wildlife area without a valid license. The Nooksack are a

Northwest Washington tnbe, and Buchanan had been hunting in a

closed Department of Fish and Wildlife Area near Yakima on the

other side of the Cascades.

Buchanan argued that his hunting nghts were protected by

treaty, and, so far, the courts have agreed. The Yakima County

prosecuting attorney has asked the state Supreme Court to review

the appeals court's decision. The Supreme Court is expected to

decide in March whether to hear the case, according to Rob

Costello, the assistant attorney general who represents the state

wildlife department.

* Rob Carson covers tribal affairs. Reach him at 253-597-8693 or

rlc@p.tnbnet.com

13

The Seattle Times

Published:: Sunday, March 29, 1998

Opinion/Editorials

CALMLY CONSIDER TRIBAL HUNTING RIGHTS, RULES

AN overblown early reaction to tribal hunting nghts in

Washington has left the impression that treaty tribes can take big

game anywhere, any time. Before the anger goes any further,

responsible hunters should pause and watch how negotiations will

put to rest the rumors and suspicions over uncontrolled hunting.

Based on the recent State vs. Buchanan decision,

Washington's tribal members have a night to hunt without license

on previously hunted land throughout the state. The decision may

be heard by the State Supreme Court, but the early ramifications

appear stark. The Yakima County Superior Court ruled that two

members of the Nooksack tribe who traveled to Eastern

Washington and killed two bull elk were not hunting illegally even

though far from their tribal lands. The court said any tribal member

has a right to hunt in open and unclaimed lands within the former

Washington Territory.

The state's highly regulated and licensed non-Native hunters

are aghast. Instead of tribal hunting rights limited to traditional}

locales, they imagine the spectre of rapacious hunting of elk, deer

and other species on all public lands. So far, that sounds like

alarmism instead of reality.

The state Fish and Wildlife Commission has begun

negotiations with more than 20 tribes over cooperative hunting

agreements. While "open and unclaimed" lands invoked in the

decision are still a gray area, the state has always maintained that

park lands and other areas not already hunted will not be hunted by

anyone. Hunters should also keep in mind that hunting patterns

reported by the state Commission show tribal harvests of elk and

deer are minuscule compared to non-Native hunters.

Statewide, tribal hunters took 286 elk during 1995-96

compared with 6,429 elk harvested by non-tribal hunters. On the

eastern side of the Cascades, the tribal elk kill was none - zero -

reported, compared with 3,099 for non-tribal hunters. For both

tribal and non-tribal hunters combined, the yearly kill of deer and

elk is sliding down, caused by a variety of factors from

i

encroachment to fewer hunters. In 1995, hunters took 39,505 deer,

the lowest number in a decade, and 6,715 elk, again the lowest

number since 1987.

The issue for Washington hunters is not tribal hunters raising

their take from zero to a few hundred, but the larger questions of

hunting's general decline from habitat loss and urbanization of

once-rural lands.

A few tnbal-related hunting incidents have not helped the

argument and give added reason to include the tribes in wildlife

management and enforcement.

The notorious case of five elk found shot and meat wasted

along a highway is cited as senseless tribal mismanagement. Elk

shot on the Mount St. Helens reserve is another. Killing elk in the

wide-open river valley beneath the visitor's overlook is a reckless

abuse of traditional hunting nghts, like carrying « shotgun into

Disneyland.

Many licensed hunters have long ago reached a mental

compact with tribal hunters. The unspoken agreement is that the

tribes have a historic and iron-clad treaty night to use the land and

waters once solely theirs. But open abuse, such as shooting placid

elk at a feeding station, destroys the hunting ethic for native and

non-native alike.

That underlying covenant can drive an agreement that accepts

the Buchanan decision, but only if tribes incorporate broader, self-

imposed regulations. Some tnbes - usually those not close to prime

hunting land - do not report their harvests. Their compliance in

recording total harvests would be welcome. Similarly, helping

with enforcement against b.atant hunting abuses is a role the tribes

could embrace. Following Buchanan, the tnbes' freedom to hunt

carries with it the burden of responsibility.

Demonizing the tnbes makes little sense. Statistics of tribal

hunting vs. total harvest show there aren't enough Indians in the

state to kill off the elk herd.

Game management that recognizes tnbal mghts and

encourages all forms of hunting is the best way to keep hunting

alive in Washington and stave off anti-hunting referendums. The

sport's fervid detractors and land encroachment are hunting's true

enemies.

The [Tacoma] News Tribune

Published: 05-27-98

Category: Front Page

Page Al

AN UPHEAVAL OVER WHO HUNTS WHERE / CONFLICT

OVER TRIBAL RIGHTS SUGGESTS TO SOME THAT BOLDT

III MAY BE ON ITS WAY.

Byline: Rob Carson; The News Tribune

As the debate over Indian hunting rights intensifies, many see

the dispute as an almost certain beginning to Boldt III - a sequel to

the historic court decisions that upended Washington's fishing and

shellfish industries.

The issue goes beyond big-game hunting. At deeper levels,

the conflict is about tribal sovereignty and trust, not only between

Indians and non-Indians but among Washington's 26 tribes.

Efforts to solve the conflict are developing on several levels,

too.

The latest came Tuesday in Chehalis, where U.S. Rep. Linda

Smith (R-Hazel Dell) announced she intends to introduce

legislation in Congress next week that she said would even the

playing field among Indian hunters and non-Indian hunters.

Smith's proposal comes as the state is three months deep into

negotiations with the tribes, trying to find a compromise that will

keep the hunting issue out of federal court and calm racial disputes

during hunting season this fall.

Representatives of Washington's tribes sat down Wednesday

with state game managers at the Swinomish Casino near La

Conner - it was their third meeting so far - and progress was

predictably slow. Under Smith's proposal - called the Deer and

Elk Protection Act - Washington tribes no longer would have

special privileges to hunt deer and elk off their reservations. State

hunting laws would regulate all hunters, Indian and non-Indian

alike.

"This is a fair and equitable way to meet the game-

conservation goals of this state," Smith said. "We're all citizens of

16

this state, and we all have to take responsibility for safety and

conservation."

Tribal leaders dismissed Smith's legislation as_ political

grandstanding. It endangers the continuing negotiations with the

State, they say, and increases chances that the hunting controversy

will have to be resolved in federal court.

"It's just another attempt to rewmite the treaties," said Tony

Meyers, a spokesman at the Northwest Indian Fisheries

Commission. "It does nothing constructive. All it does is divide

people even more."

Court has removed limits

Here's what has led to the conflict: In deciding a case that

involved a Nooksack Indian hunter named Donald Buchanan,

Washington courts recently reinterpreted treaty language in a way

that removes almost all state limits on where and when tribes can

hunt.

Because of the Buchanan decision, Indian hunters who

previously were restricted to areas their tribes ceded in treaties

now may hunt on all "open and unclaimed lands."

With rare exceptions, state hunting laws do not apply. Indian

hunters are subject only to the regulations of their individual tribes.

The Buchanan decision is not final. The Washington State

Supreme Court has agreed to review the case next month, and the

U.S. Supreme Court likely will have the final word.

In the meantime, big-game hunting in Washington has been

thrown into chaos.

So far, the confusion is most apparent with elk, which are in

relatively short supply. Non-Indian hunters accuse tribes of

pouring into areas previously open only to non-Indians and

decimating elk herds. "The Indians are killing off all the elk," said

Tom Etheridge, a hunter who lives near Morton. "This is one

country. Everybody needs to obey the same laws. If they don't, the

elk are going to be gone."

The tribes say this is nonsense.

Most tribes manage their hunters as well, and in some cases

better, than the state, they say. Tribal hunters take relatively few

elk, compared with the 59,000 non-Indian hunters who flood the

17

woods each fall. Indian concerns about the health of elk herds and

the natural environment run far deeper than those of most non-

natives, Indians say, and the tribes’ own court systems are fully

capable of dealing with Indian hunters who break tribal hunting

laws.

The real threat to the elk herds is not hunters, they say, but the

asphalt and suburbs that extend deeper into the woods each year,

destroying elk habitat.

"The tribes are the scapegoats," said Todd Wilbur, a hunting

authority for the Swinomish Tribe. "Indian hunters take only 5

percent of the elk killed by hunters each year. The poaching alone

is almost three times as much as what all tribes harvest off-

reservation."

The Department of Fish and Wildlife makes no official

estimates of the number of elk killed by Indian hunters. Privately,

however, many managers and enforcement officers say they

believe that 5 percent figure is low.

State game managers worry they will not be able to manage

wildlife species in concert with 26 tribes, all of which are

sovereign nations and many of which refuse to share with the state

even such basic information as how many animals their hunters

kill each year.

Smith said she has received 98 complaints from her non-

Indian constituents, some of whom claim to be afraid to go hiking

or pick hucklebernes, knowing that Indians may be in the woods

hunting.

Tony Forsman, a Suquamish Indian and a veteran of both the

salmon war and the shellfish war, sees racial overtones in the

debate over hunting that are all too familiar.

The last two times he went to public meetings on tribal

hunting rights, Forsman said, he nearly was pushed into fistfights.

"Ignorance is our biggest enemy," Forsman said. "A lot of

people don't want to listen to the facts because they just don't like

Indians.

"If we can't work this out among ourselves, then the courts

will do it for us with some big Boldt thing."

I8

The search for compromise

Forsman doesn't want that. So far, at least, he and other Indian

leaders are convinced that negotiation and compromise with the

state are the best ways to resolve hunting conflicts.

Under the leadership of Wilbur, who represents the

Swinomish Tribe, hunting managers from 22 tnbes have been

putting new energy into an organization called the Salish

Intertribal Hunting Group, which meets monthly at Muckleshoot

tribal headquarters near Auburn.

The group's goal is to speed resolution with the state and keep

the hunting issue out of the courts - and away from Congress.

They're trying to minimize enforcement differences among

tribes, standardize hunting seasons and regulations and pool

resources so they can co-manage elk herds alongside the state.

That is proving to be difficult, some say.

The new court ruling upset traditional territorial agreements

among tribes and opened hunting to competition and intertribal

rivalry.

"It's not nice and neat," said Meyers, who has been working

with the intertribal hunting group. "There are 26 tribes and, on

most issues, 26 different points of view."

One of the intertribal conflicts involves tribes such as the

Yakama Nation, whose former ceded areas include healthy,

huntable elk herds.

_ Those tribes fear the new interpretation of the treaties will

mean their elk herds will be overhunted by urban tribes from the

Puget Sound area whose own hunting lands have been paved over.

"Here we have a situation where some of the tribes are saying,

"Hey this is the greatest thing since sliced bread,’ while others are

saying, Wait a minute," said Rolf Johnson, elk specialist with the

State Department of Fish and Wildlife.

Uneasiness over court intervention

Most tribes seem to want to work out a co-management

relationship with the state, but others would just as soon take the

matter to court and let a federal judge decide.

I9

If history is an indication, the federal court probably would

treat the tribes very well.

"Look at the history of fishing," said Margaret Ainscough,

spokeswoman for the Fish and Wildlife Department. "Before

Boldt, tribes took something like 16 percent of the fish. After

Boldt, they took 50 percent."

The hunting guarantee in the treaties is even more generally

worded than the one that describes fishing, Ainscough said. If a

judge were to decide the issue, she said, the decision could turn out

to be very painful for the state and for non-Indian hunters.

Even so, it is in the tribes’ best interest to stay out of court,

Forsman said, because of the high costs of a legal settlement - cost

not only in terms of money but in terms of time and good will.

And, because of many unresolved tribal issues, some tribes are

nervous about where a court-ordered settlement would leave them.

The tribes have done much better in court than they have in

the court of public opinion. As hunting negotiations proceed, the

tribes are operating with a heavy public-relations deficit.

Earlier this year, just as the tribes were struggling to make the

point that they tightly regulate their hunters, three Tulalip tribal

members were arrested for a grisly hunt that game regulators say

was more like slaughter.

Around midnight Feb. 18, state game officers say, the Tulalip

hunters used a spotlight while shooting five elk from the Spirit

Lake Memorial Highway. Cowlitz County prosecutors filed

charges, and the three men were scheduled for initial court

appearances last week. One showed up; two did not. Cowlitz

County Prosecutor Jim Stonier said he will seek warrants for their

arrests.

Meanwhile, Tulalip officials insist the men should be

prosecuted in tribal court, not state court. That jurisdictional

controversy goes to the heart of the hunting dispute.

Neither side trusts the other to deal fairly with violators.

The Tulalip elk kill was so outrageous, no tribe would

condone it, said Pete Jerry, the Muckleshoot representative on the

new intertnbal hunting group.

"That was a no-brainer," he said.

110

But Jerry said there are cultural differences between how

Indians hunt and how non-Indians hunt. The concept of sport

hunting and trophy hunting is alien to most Indians, according to

Jerry. "We hunt for food," he said.

That can mean hunting late in the season when elk come out

of the mountains and are more vulnerable. It can mean using

"designated hunters," who kill many animals and distribute the

meat to needy tribal members. It can mean choosing young, fat

animals instead of old bulls with big antlers.

Those cultural differences may be distasteful to some non-

Indians, Wilbur said, "but that doesn't mean they're bad. It's an

appearance thing.”

Smith sees it differently. Culture must come second to safety

and conservation, she said. "Culturally, we're not going to have

any animals left to be cultural about," she said.

* Staff writer Rob Carson covers tribes and diversity issues. Reach

him at 253-597-8693 or by e-mail at rlc@p.tribnet.com

111

The [Tacoma] News Tribune

Published: 06-01-98

Category: Editorial

Page: A6

COOPERATION IS KEY TO HUNTING DISPUTE

Since January, state game managers have been negotiating

with more than 20 of Washington's Indian tribes in an attempt to

reach cooperative hunting agreements. Although progress has been

slow, the talks are well worthwhile and long overdue.

These discussions are not occurring in a vacuum. They were

spurred by the Buchanan decision, a controversial ruling issued in

Yakima County Superior Court last year that gave tribes hunting

rights on "open and unclaimed lands" anywhere in the state, even

if those areas are far from a tribal member's home. Buchanan's

“open and unclaimed" language has raised a host of thorny and

unresolved questions about the geographical extent of treaty rights

and the capacity of tribal officials to regulate hunters from other

tribes in addition to their own.

The Buchanan ruling, however, was upheld by the

Washington State Court of Appeals. The case is now headed to the

state Supreme Court, where it is scheduled to be heard in early

June. The court may help by clarifying whether tribal hunters may

roam far from their ancestral hunting grounds - an issue

legitimately in dispute. The court would also do well to put state-

operated elk feeding stations off-limits to tribal hunters. Tribes

should recognize this is sensible policy.

But no matter what the court decides, it would be in

everyone's best interest to work together to avoid court-ordered

harvest allocations akin to the landmark Boldt decision. Issued in

1974, the Boldt ruling gave Washington tribes fishing rights to 50

percent of the state's harvestable salmon each year. Such heavy-

handed intervention would be unfortunate.

Other suggestions floated recently - including ill-advised

legislation recently proposed by U.S. Rep. Linda Smith (R-Hazel

Dell) - would be equally unhelpful. Instead, state game officials

and tribal governments should continue their efforts to reach

voluntary, realistic and enforceable agreements that will result in

effective management of the state's bi g-game herds.

112

Tribes also must understand they will be under enormous

pressure to regulate themselves. Hunting abuses such as February's

irresponsible elk kill on the Mount St. Helens preserve have been

public relations nightmares for all tribes. This incident and others

have made it all the more important that tnbes demonstrate the

ability to effectively police themselves and each other.

Much too often, though, tribes are unfairly accused of

decimating the state's elk herds. These allegations have no basis in

fact. The truth is Indians take somewhere between 5 and 16

percent of all elk harvested each year. The state estimates tribal

hunters took fewer than 300 elk statewide during the 1995-96

season, while non-tribal hunters took more than 6,400.

The real problem for tribal and non-tnbal hunters alike is the

precipitous decline in elk populations, which are impacted by

unrelenting habitat destruction and development. These are facts

that blame-shifting and name-calling won't change.

In the end, the state, the tribes and non-tribal hunters must

find ways to cooperatively manage the resource. Because if they

do not, soon there may be nothing left to manage.