# Petition for Writ of Certiorari — Buchanan v. Washington > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0352%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 528 U.S. 1154 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0352%3A1. Public record. Not legal advice.