Opposition Brief — Buchanan v. Washington

Supreme Court, U.S,

PILED

No. 99-783 DEC @ 1999

- CLERK

IN THE

Supreme Court of the Hnited States

DONALD R. BUCHANAN,

Petitioner,

v.

STATE OF WASHINGTON,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF WASHINGTON

RESPONDENT?’S BRIEF IN OPPOSITION

LAuRI BoypD

Attorney for Respondent

OFFICE OF THE PROSECUTING ATTORNEY

128 North Second Street

Yakima, WA 98901

(509) 574-1200

156471 @J Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

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QUESTION PRESENTED

Whether Washington’s Supreme Court, following the

Supreme Courts of Idaho and Montana, correctly interprets

the right to hunt on open and unclaimed land as permitting

hunting both on ceded land and on land traditionally hunted

by the tribe?

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TABLE OF CONTENTS

Page

Question Presented .....06ssideener eee 1

Table of Cambemts occ cd cee eieecetaeae cu il

Table of Cited AmRGSMRGB 6. ss saivksicee ashes iV

Table of Ampen@ioes «oc sii.cs sea nsaeen eres eae. Vii

Statement of the Case. esi tnasesesneeee l

Reasons for Denying the Writ ................. 2

I. The Court Below Fully Considered And

Correctly Decided The Issues ............ 2

A. The geographic scope of the Nooksack

right to hunt on open and unclaimed

lands cannot be determined from the

treaty language alone. The context in

which the treaty arose must also be

examined in order to determine the

parties GRR. ok eee 2

B. Washington’s Supreme Court

determined the scope of off-reservation

hunting rights consistent with the Idaho

and Montana Supreme Courts. ....... 6

C. This case does not conflict with federal

PECCOGNNE. .oascccsiciputenee 8

————————————————

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Contents

Page

II. Confusion Will Only Arise If The

Washington Supreme Court’s Decision Is

oul: parks RRS G ke eS 10

NS ge See ay Lei ay bee Siw 6a Ko 1]

iv

TABLE OF CITED AUTHORITIES

Cases:

Crow Tribe of Indians and Thomas Ten Bear v.

Repsis, 73 F.3d 982 (10" Cir. 1995), cert. denied,

SEG SGA TG Ce: ak Gi ee eae ke HSS

Department of Ecology v. Yakima Reservation

Irrigation District, 121 Wn. 2d 257, 850 P.2d

ee ere ne ee Le en ere eee

Minnesota v. Mille Lacs Band of Chippewa Indians,

Fe es OF CUE GA hase kek eee ene esa aa

Oregon Department of Fish & Wildlife v. Klamath

Indian Tribe, 473 U.S. 753 (1985) ...........

Seufert Bros. Co. v. United States, 249 U.S. 194

CINE 666 6as veh hasdenars Beer aee es ouws

State v. Arthur, 261 P.2d 135 (Idaho 1953), cert.

Genied, 347 TDi Sar time hs 6584

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

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Page

Cited Authorities

Page

United States v. Hicks, 587 F. Supp. 1162 (W.D.

WE, SI ois hs Case eerie i Seek keene 9

United States v. Taylor, 3 Wash. Terr. 88, 13 P. 333

FART) ioc bs dus wlvckcesbeeenre heeeoenaneee 3

United States v. Washington, 157 F.3d 630 (1998),

cert. denied, 119 S. Ct. 1377 (1999) .......... 4

United States v. Washington, 384 F. Supp. 312 (W.D.

Wash. 1974), aff'd, 520 F.2d 676 (9" Cir. 1975),

cert. denied, 423 U.S. 1086 (1976) ........... 8,9

United States v. Winans, 198 U.S. 371 (1905) .... 2,3

Ward v. Race Horse, 163 U.S. 504 (1896) ....... 6

Washington v. Washington State Commercial

Passenger Fishing Vessel Association, 443 U.S.

GSU CISTED howe vices Gaus ee a, 4, 3,3

vi

Cited Authorities

Page

Other Authorities:

Felix S. Cohen, Handbook of Federal Indian Law,

O46 CIORS) i isccaacdciatve seine eee 3

Dana Johnson, Native American Treaty Rights to

Scarce Natural Resources, 43 U.C.L.A. Law Rev.

S47 (TSGS) os vn wencuassxeoa eee 3

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) ....2, 4, 6,7

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 (U9RR) soins aa 3

The Tacoma News Tribune, May 27, 1998, Rob

CONOR 6b ane ee eee 10

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TABLE OF APPENDICES

Appendix A — Map of Tribal Lands ............ la

Appendix B — United States v. Taylor, 3 Wash.

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STATEMENT OF THE CASE

On January 6, 1995, Donald Buchanan was stopped by

wildlife enforcement officers for hunting on land owned and

managed by the State of Washington in the eastern part of

the state. He possessed two dead five-point, branch-antlered

bull elk while his state hunting license was revoked and elk

season closed.

Buchanan lives in Kent, Washington, a Seattle suburb

west of the Cascade Mountains. He is an enrolled member

of the Nooksack Indian Tribe. The Nooksack reservation is

in Whatcom County — west of the Cascade Mountains and

Washington’s tribe nearest the Canadian border. The lands

ceded to the United States by the Nooksack Tribe under the

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

of the Cascade range. Thus, Buchanan hunted on the other

side of the Cascade Mountains from his tribe’s ceded land

and from his home. See App. A.

The State charged Buchanan with Possessing big game

during closed season and hunting while his license was

revoked. He moved to dismiss claiming the State’s

regulations do not apply to him because he has the treaty

right to hunt on open and unclaimed lands. He alleged the

only regulations governing tribal hunting on open and

unclaimed lands are Nooksack tribal regulations.

The trial court dismissed the charges and ruled the treaty

gives tribal members a right to hunt anywhere in the

“Territory of Washington.” The Court of Appeals affirmed.

The State appealed. Washington’s highest court unanimously

held these hunting rights are geographically available in the

ceded territory and may include other areas if they are proven

2

to have been actually used for hunting and occupied by the

Nooksacks over an extended period of time.

REASONS FOR DENYING THE WRIT

I. THE COURT BELOW FULLY CONSIDERED AND

CORRECTLY DECIDED THE ISSUES

The Washington Supreme Court followed case precedent

when it interpreted the Indian right to hunt on open and

unclaimed land as the right to hunt on ceded land and on

traditional tribal hunting grounds.

A. The geographic scope of the Nooksack right to hunt

on open and unclaimed lands cannot be determined

from the treaty language alone. The context in which

the treaty arose must also be examined in order to

determine the parties’ intent.

Buchanan claims the treaty language granting Indians

the right to hunt open and unclaimed land has no geographic

limitation. Case precedent holds otherwise. “Open and

unclaimed” is defined by case law as the right to hunt off-

reservation on all state and federally-owned land except

federal parks. See State v. Miller, 102 Wn. 2d 678, 680 at

n.2, 689 P.2d 81 (1984) (citations omitted).

It is a well-accepted fact that Indian treaties are “not a

grant of rights to the Indians, but a grant of rights from them,

— areservation of those not granted.” 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, 18/ (1992), citing United

States v. Winans, 198 U.S. 371, 381 (1905).

3

Even before Winans, however, this interpretation of the

meaning of treaties was expressed in a Washington territorial

case, United States v. Taylor, 3 Wash. Terr. 88, 13 P. 333

(1887) (App. B); Felix S. Cohen, Handbook of Federal

Indian Law, at 444 n.20 (1982). The reservation of rights

has been followed continually since in cases such as Seufert

Bros. Co. v. United States, 249 U.S. 194, 199 (1919)

(hereafter Seufert Bros.); Washington v. Washington State

Commercial Passenger Fishing Vessel Association, 443 U.S.

658, 679-81 (1979) (hereafter Fishing Vessel); Cohen, supra,

at n.21; and 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, 447-48 (1998).

Consistent with prior case law, the Washington Supreme

Court applied the doctrine of reserved Indian rights to

determine the meaning of “open and unclaimed” in

Buchanan’s case. Justice Guy observed certain tribal rights,

such as hunting and fishing rights, have belonged to the

Indians from time immemorial. A treaty 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. State

v. Buchanan, 138 Wn. 2d 186, 203, 978 P.2d 1070 (1999),

citing Dana Johnson, Native American Treaty Rights to

Scarce Natural Resources, 43 U.C.L.A. Law Rev. 547, 552

(1995).

The Buchanan court also recognized the reservation of

rights doctrine has consistently been applied to the fishing

and hunting provisions of the Stevens Treaties at issue here.

State v. Buchanan, 138 Wn. 2d at 203, citing as examples

Fishing Vessel and Seufert Bros. Thus, consistent with prior

cases, Buchanan analyzed the geographic scope of the

4

Nooksack hunting right first in light of the long-standing

reservation of rights doctrine. Again as in many prior cases,

the court then applies the other rules of treaty interpretation.

The Buchanan court held the Nooksacks reserved the

right to hunt on open and unclaimed ceded land, together

with the right to hunt their traditional grounds. The court’s

analysis is consistent with over a hundred years of precedent.

The Buchanan court asked the two basic questions of treaty

interpretation: what rights did the tribe reserve and what did

the parties intend by “open and unclaimed”? The court then

applied the principles of treaty construction, such as

construing ambiguous language in a manner non-prejudicial

to the Indians, to decide the scope of off-reservation hunting

rights. Buchanan decided the Nooksacks may hunt off-

reservation on their ceded and traditionally hunted lands.

This analysis is consistent with both precedent and the well-

established rules of treaty construction.

Petitioner argues Buchanan erred because the plain

language of the treaty controls. This ignores the “well-

accepted fact” of the reservation of rights doctrine and

erroneously views the treaty as simply a contract. See Nye,

supra, at 187. Although the goal of treaty interpretation is

the same as the goal of contract interpretation (determining

the intent of the parties), the analysis of the parties’ intentions

begins with the language of the treaty and the context in

which the written words are used. Buchanan, 138 Wn. 2d at

201-02, citing Fishing Vessel and United States v.

Washington, 157 F.3d 630 (1998), cert. denied, 119 S. Ct.

1377 (1999) (emphasis added).

The Buchanan court then applied the established rules

of treaty construction to interpret the parties’ intent. Initially,

and contrary to Petitioner’s claim, the treaty must

5

“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.” Buchanan,

supra, citing Fishing Vessel (internal citation omitted) and

State v. Miller, 102 Wn. 2d 678, 683 (1984).

Next, the Buchanan court observed, where there is

ambiguity in the language of the treaty, it must not be

construed to the prejudice of the Indians. Buchanan, 138

Wn. 2d at 202, citing Minnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172 (1999) (hereafter Mille

Lacs) (additional citations omitted). 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. Buchanan, supra, citing Oregon

Department of Fish & Wildlife v. Klamath Indian Tribe, 473

U.S. 753 (1985); Department of Ecology v. Yakima

Reservation Irrigation District, 121 Wn. 2d 257, 277, 850

P.2d 1306 (1993). Additionally, treaties must be construed

liberally in favor of Indians. Buchanan, supra (citations

omitted).

Petitioner claims because the plain language of the treaty

does not geographically limit off-reservation hunting to

ceded or aboriginal lands, no geographic limit except the

“Washington Territory” exists. Again contrary to precedent,

Petitioner disregards reserved rights. He errs because the

“doctrine” has been a well-accepted fact in Northwest treaty

construction since before Washington became a state.

Lastly, with respect to rules of construction, Petitioner

claims the Washington Supreme Court failed to broadly

interpret the Treaty of Point Elliott in favor of the Indians.

Petitioner is correct that treaties must be broadly construed

6

in favor of Indians. Buchanan in fact construes the treaty

provision broadly in the tribe’s favor.

Buchanan interprets “open and unclaimed” as adding

aboriginal lands to ceded lands as areas available for

Nooksack off-reservation hunting. In doing so, the court

favors the Indians by increasing the area they may hunt off-

reservation. This expanded geographic scope benefits tribes

and is consistent with principles of treaty construction and

case precedent. Because the decision is consistent with

precedent, certiorari is unnecessary. However, if review is

granted, the better analysis is that tribes should not be allowed

to hunt outside their reservations since there are no longer

any “open and unclaimed” lands as that term was understood

by the Indians. Ward v. Race Horse, 163 U.S. 504 (1896);

Crow Tribe of Indians and Thomas Ten Bear v. Repsis, 73

F.3d 982 (10" Cir. 1995), cert. denied, 116 S. Ct. 1851 (1996).

B. Washington’s Supreme Court determined the scope

of off-reservation hunting rights consistent with the

Idaho and Montana Supreme Courts.

The Idaho Supreme Court previously analyzed the scope

of off-reservation treaty hunting rights in the landmark case

of State v. Arthur, 261 P.2d 135 (Idaho 1953), cert. denied,

347 U.S. 937 (1954). In Arthur, a tribal member hunted on a

National Forest Reserve. The court analyzed the treaty

language “open and unclaimed land” by asking what this

phrase meant to the parties when they signed the treaty, and

what rights was the phrase intended to reserve. Nye, 67 Wash.

L. Rev. at 183, citing Arthur, 261 P.2d at 183. The court

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

7

are outside the boundary of their reservation.” Arthur, 74

Idaho at 265; Buchanan, 138 Wn. 2d at 206.

More recently, in State v. Coffee, 556 P.2d 1185, 1189

(1976), the Idaho Supreme Court again analyzed off-

reservation hunting rights by examining reserved rights. The

court observed treaties are 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.” Nye, supra, at 190, citing

Coffee, 556 P.2d at 1188.

In addition to Idaho, the Montana Supreme Court

analyzes treaty hunting rights with reference to the Indians’

reserved rights. Montana’s highest court explicitly follows

Idaho and concludes hunting and fishing rights under similar

treaty language are “part and parcel with aboriginal title”

using the reservation of rights analysis. State v. Stasso, 172

Mont. 242, 563 P.2d 562, 563 (1977), citing Coffee, 556 P.2d

1185. Stasso concludes the Indians, at the time of the treaty,

reserved the right to hunt on open and unclaimed lands

outside their present day reservation, but within their

aboriginal hunting territory. Stasso, 563 P.2d at 564.

Thus, Buchanan relies on the reservation of rights

doctrine to determine the geographic scope of off-reservation

hunting, consistent with the sister states of Idaho and

Montana. The Washington Supreme Court concludes,

consistent with precedent, that “open and unclaimed” means

treaty tribes may hunt their ceded and traditional hunting

areas. Because the decision is consistent with precedent,

certiorari is unnecessary.

8

C. This case does not conflict with federal precedent.

Petitioner contends two federal decisions conflict with

the Washington Supreme Court: Mille Lacs and United States

v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974), aff'd,

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

(1976) (hereafter Boldt). Neither conflicts with Buchanan.

Landowners and counties in Mille Lacs argued the

Wisconsin Bands do not hold usufructuary rights in the

Minnesota portion of the ceded territory because none of

the Wisconsin Bands used and occupied the area at treaty

times. Mille Lacs does not conflict with Buchanan because

the right to hunt non-ceded land was at issue in Buchanan.

As noted, because Buchanan hunted on land hundreds

of miles from his tribe’s ceded lands, the court had to

determine if he had any other right to hunt in the area.

Aboriginal right, if proven by prior use, is distinct from the

right to hunt on ceded lands since the two areas, as in this

case, may differ geographically. Mille Lacs rejected attempts

to limit tribal hunting on ceded land to land that was also

traditional hunting ground. Buchanan did not decide this

issue; thus, it is consistent with Mille Lacs.

Nor does Buchanan conflict with Boldt or the shellfish

cases. Petitioner contends these cases hold the reservation

of rights doctrine may not be used to limit off-reservation

hunting rights for treating Indians. Petitioner fails to

recognize these cases interpret the treaty right to fish rather

than the right to hunt.

The rights differ in scope and intended duration. The

treaty fishing right reserved in the Stevens Treaties has been

9

interpreted to provide a broad right to fish outside ceded

lands in all usual and accustomed fishing areas, and, more

importantly, the right to fish is interpreted as a permanent

one, unless abrogated by Congress. Buchanan, 138 Wn. 2d

at 104 citing Boldt and Fishing Vessell.

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. Buchanan, 138 Wn. 2d at 105, citing

United States v. Hicks, 587 F. Supp. 1162, 1164 (W.D. Wash.

1984) as an example.

Even if Petitioner accurately states the holdings of Boldt

and the shellfish cases, they do not apply to Buchanan. Boldt

and the shellfish cases address the permanent right to fish

under the Stevens Treaties. Buchanan, on the other hand,

addresses the temporary treaty right to hunt.

Petitioner’s argument also fails because Buchanan used

the reservation of rights doctrine to expand, not limit, off-

reservation hunting. It has been clear in Washington for some

time Indians may hunt on open ceded land. The question in

Buchanan is whether a tribal hunter may also hunt on non-

ceded land. The Washington Supreme Court decided the

treaty Indians’ reserved rights give Buchanan a different,

additional basis for exercising his hunting rights on non-

ceded land: aboriginal title, to be proven by the Nooksack’s

prior use of this land for hunting.

Because Buchanan uses reserved rights to expand, not

limit, the geographic scope of tribal off-reservation hunting,

its holding is consistent with Boldt and the subsequent

shellfish litigation decisions of the federal courts.

10

II. CONFUSION WILL ONLY ARISE IF THE

WASHINGTON SUPREME COURT’S DECISION

IS DISTURBED

Finally Petitioner claims review should be granted

because Buchanan has caused confusion. The argument is

without merit.

The only demonstrated confusion over the scope of off-

reservation hunting rights resulted from the superior and

lower appellate court opinions in this case. Those courts

erroneously held off-reservation hunting could occur

anywhere within the “Washington Territory.”

This holding created great confusion because it was

contrary to precedent and to the understanding of many tribes.

As stated in Petitioner’s Appendix at 18:

The new court ruling upset traditional territorial

agreements among tribes and opened hunting to

competition and intertribal rivalry . . .

One of the intertribal conflicts involves tribes such

as the Yakama Nation, whose former ceded area

include healthy, huntable elk herds.

Those tribes fear the new interpretation of the

treaties will mean their elk herds will be

overhunted by urban tribes from the Puget Sound

area whose own hunting lands have been paved

over.

The Tacoma News Tribune, May 27, 1998, Rob Carson;

Petitioner’s Appendix at I5-I10.

LA ELME SALE LEN AE ATRESIA EADIE EL CASE BITES

HOMIE

11

Petitioner argues the sole geographic boundary for off-

reservation hunting rights is the “Washington Territory.” The

only confusion created in this case came when the lower

courts adopted Petitioner’s argument. The Washington

Supreme Court has cleared the confusion and returned off-

reservation hunting rights to the relative clarity created by

earlier state and federal cases.

CONCLUSION

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

certiorari should be denied.

Respectfully submitted,

Lauri BoypD

Attorney for Respondent

OFFICE OF THE PROSECUTING ATTORNEY

128 North Second Street

Yakima, WA 98901

(509) 574-1200

APPENDIX

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APPENDIX A — MAP

BEST AVAILABLE CO

2a

APPENDIX B — UNITED STATES v. TAYLOR,

3 Wash. Terr. 88, 13 P. 333 (1887)

[Decided January 25, 1887]

UNITED STATES AND OTHERS

v.

FRANK TAYLOR.

INDIANS — RIGHT TO FISHERIES — TREATY OF JUNE 9, 1855 —

INJUNCTION. — Under the treaty of the United States with

the Yakima tribe of Indians, entered into June 9, 1855,

conferring on them the right of taking fish at all usual

and accustomed places, in common with the citizens of

Washington Territory, etc., the privilege is reserved to

them to enjoy all the fisheries they had theretofore

enjoyed; and when a person, under an act of Congress

passed subsequently to the treaty, obtained a patent for

homestead land abutting upon the Tum Water fishery,

and erected and maintained a fence thereon, which

obstructed the approaches to the fishery, and prevented

the enjoyment by the Indians of the right which had been

so reserved to them, equity will interfere by injunction

and cause the removal of the obstruction.

APPEAL from the District Court holding terms at North

Yakima. Fourth District.

The complaint sets forth that the Yakima tribe of Indians,

with confederated tribes, formerly owned and occupied a

large area of land, embracing within its scope what are now

the several counties of eastern Washington Territory; that

3a

Appendix B

the Columbia River flowed through their domain; that this

river abounded in salmon, a fish upon which, from time

immemorial, the tribe of Indians had largely subsisted; that

while the fish were used by all, to many members of the

tribe they constituted an indispensable article of food; that

from traditional times, these fish had annually entered the

Columbia River from the sea, and gathered in great numbers

at a few certain places or fisheries, the principal and most

important of which was the one mentioned; that this fishery

was within the country of these confederated Indian tribes,

and to it the members of the tribes had been accustomed to

go during the fishing season, and upon the adjacent river

banks found a temporary home for themselves and families,

pasturage for their ponies, and places to land and cure the

fish which was preserved for winter use. The complaint

alleges the making and conclusion between the confederated

tribes and the United States of the treaty of June 9, 1855,

ratified by the Senate March 8, 1859; that in consideration

of certain annuities and compensations, made by the

government to the Indians, they had ceded to the United

States most of their country, and made concessions relative

to rights of way and public highways across that portion of

land they retained as their permanent reservation; that certain

other rights and privileges were by the Indians expressly

reserved; among which were the following: “The right of

way with free access from the same [their reservation] to the

nearest public highway, .... and also the right, in common

with the citizens of the United States, to travel upon all public

highways; .... the exclusive right of taking fish in all

streams where running through or bordering said reservation,

_ as also the right of taking fish at all usual and

accustomed places, in common with the citizens of the

4a

Appendix B

territory, and of erecting temporary buildings for curing

them.”

The complaint also sets forth, that by reason of the nature

of the banks of the river the approach to the fishery was

limited to certain defiles, or passage-ways; that at the time

of the conclusion and ratification of the treaty, said Indians

were so using and enjoying said fishery, and continued such

use and enjoyment long thereafter, and until prevented by

Taylor; that Taylor had fenced in the land bordering the river

in front of the fishery over which the Indians were

accustomed to pass in going to and from the fishery, and

upon which they landed fish, erected their curing-houses,

made their temporary abodes during the fishing season, and

upon which they pastured their animals. The fishery is

perhaps fifty or seventy-five miles or more distant from the

reservation. The complaint averred that the Indian plaintiffs

were old men, and through life looked to this source of supply

for necessary food, and if deprived of it would perish. The

plaintiffs prayed for an injunction, etc., and other equitable

relief.

By his answer the appellee admits the making and

ratification of said treaty, and the inclosing of said land by a

fence, upon a portion thereof, over which said Indians had

been accustomed to travel in going to and from said fishery;

that there was no fence built upon the side next to the river,

the river itself being the only means of inclosure on that

side; but avers that he had the right, as owner in fee of said

land, to thus inclose the same to protect his crops growing

thereon, notwithstanding said treaty. Appellants replied, and

the cause was tried upon these pleadings, and upon the facts

Sa

Appendix B

as stipulated in a statement agreed to by all parties, which is

fully set forth in the opinion of the court. Findings and

judgment for defendant, and plaintiffs appealed.

Mr. W. H. White, United States Attorney, and Mr. John

B. Allen, for the Appellant.

A treaty entered into by the United States constitutes a

part of the supreme law of the land, and is as much a part of

the local law of Washington Territory as a statute lawfully

enacted by its legislature. (Ware v. Hylton, 3 Dall. 236,

Hauenstein v. Lynham, 100 U. S. 483.) When a treaty admits

of two constructions, one restrictive as to the rights that may

be claimed under it, and the other liberal, the latter is to be

preferred. (Shanks v. Dupont, 3 Pet. 242; Hauenstein v.

Lynham, 100 U.S. 487.) That construction of a treaty should

be taken as the true one which has been adopted and acted

upon by the parties to it. (United States v. Payne, 8 Fed.

Rep. 892.) While the rule obtains generally of giving to

treaties the most liberal construction, with a view of effecting

the objects of the parties to them, it has a peculiar and special

application in case of such a treaty as the one brought to the

court’s attention. This is a treaty made by a powerful,

enlightened, and Christian nation, with ignorant and

barbarous tribes who occupy toward that nation the

anomalous attitude of a high contracting party, and at the

same time that of a ward. The treaty is framed in the tongue

of the civilized nation. For the aptness and adequacy of its

language to protect their reserved rights as well as to cede

their country, the Indians were not only dependent upon the

nation with whom they dealt, but even for the interpretation

and construction of that language. The court should not

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hesitate, therefore, to give the most extended meaning to the

language employed, to prevent the treaty being construed to

the prejudice of the Indians. (Worcester v. Georgia, 6 Pet.

582; The Kansas Indians, 5 Wall. 760.) It may be true that

an act of Congress may repeal a treaty. In such case, however,

there are peculiar reasons for applying the rule with great

strictness. (Taylor v. Morton, 2 Curt. 454; The Cherokee

Tobacco, 11 Wall. 621.) It is not within the power of the

courts or an executive officer of the government to

contravene the provisions of this treaty. To each it is the

supreme law of the land. It would not be within the power of

the government, in the issuance of a patent, to deprive these

Indians of a treaty right secured them. If the right of fishery

claimed in this case was reserved to the Indians by treaty

stipulation, Taylor and his grantors are charged with

knowledge of the same. In short, the reservations of this treaty

are in effect imported into the patent. (The Peggy, 1 Cranch,

109, 110.)

Mr. William Lair Hill, and Mr. F. P. Mays, for the

Appellee.

By the common law, in the absence of governmental

restriction, citizens have the right to take fish in the navigable

streams, not at some particular places, but generally. But

this right is subject to regulation by the government within

whose local jurisdiction the streams lie. (Coolidge v.

Williams, 4 Mass. 140; Commonwealth v. Chapin, 16 Am.

Dec. 386.) A treaty, however, is under our system of

government the “supreme law,” — supreme in so high and

broad a sense that no state or territorial government, nor any

power short of the treaty-making power of the Congress of

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Appendix B

the United States, can abrogate it. By this treaty it was

intended that neither the territory nor future state of

Washington should have the power, in the exercise of the

right to regulate fishing in its great streams, to deny to these

Indians the same privileges enjoyed by citizens. It might,

for protection against extermination of fish, restrict the

fishing to certain times, places, and methods, or, but for the

treaty, it might, as governments have often done, altogether

exclude all persons not citizens from fishing in its waters;

but under this treaty the power to exclude the Indians (who

are not citizens), or to deny to them any substantial rights of

fishing, which are not denied to the citizen, is taken away in

advance; and the Indians are further secured in the right to

erect temporary buildings for curing fish, — a right not

enjoyed by citizens under the common law. (Coolidge v.

Williams, supra; Cortelyou v. Van Brundt, 3 Am. Dec. 439.)

This right to go on the shore, upon the land of the defendant,

to cure fish, cannot be extended by construction to include

any other right upon the land. It is a right in derogation of

his right to the exclusive possession of his land, as the owner

in fee, and must be strictly confined within the prescribed

limits. (Taylor v. Hampton, 17 Am. Dec. 710.) The right, in

common with citizens, to take fish, implies neither the right

to occupy defendant’s land for the purpose of catching fish,

nor the right to go over and upon his other lands, in traveling

to and from the river; for that is not specified in the treaty,

nor is it included in the right of fishing held in common with

citizens. Citizens have no rights on the lands of defendant.

(Coolidge v. Williams, supra; Cortelyou v. Van Brundt,

supra.) The Indians have the right to go to the places where

they have a right to fish in the river, and to go upon the

shore to cure their fish. But this is a right arising out of

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Appendix B

necessity, not a right specified in the treaty; and the necessity

of trespassing upon defendant’s land, either for taking fish

or for approaching the shore, does not exist. The river being

navigable, and by that fact a public highway, the Indians

must use that as a means of approach. (Turnbull v. Rivers,

15 Am. Dec. 622.) The right of the defendant to build and

maintain the fence is unquestionable. The treaty expressly

secures to the Indians the right to travel upon the public

highways of the territory. So they have a perfect means of

approach, by the common highways, to the navigable

streams, and by the navigable streams to the places where

they desire to take and cure fish. Defendant, in the stipulated

statement of facts, has admitted that the fishery in question

is one of the “ancient, usual, and accustomed fisheries”

referred to in the treaty. This admission in the written

stipulation is merely a mistaken admission as to the contents

and meaning of a law, and does not conclude this, no matter

when made, from insisting upon the application of the law

as it is, and in its true meaning. (Brewster v. Striker, 2 N. Y.

19; Chatauqua County Bank v. White, 6 N. Y. 253.) The

treaty is so modified by the homestead law, subsequently

passed, under which defendant obtained title, that all rights

of the Indians upon the lands along the navigable rivers cease

as to any particular tract, whenever the land is granted, under

the law, to an individual. The treaty is the supreme law in no

higher sense than an act of Congress is the supreme law. It

may be abrogated by an act of Congress. A subsequent act

of Congress in conflict with its provisions repeals it pro tanto

by implication, just as if it were a previous act of Congress

instead of a treaty. (Foster v. Elam, 2 Pet. 314; The Cherokee

Tobacco, 11 Wall. 621.)

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Appendix B

Mr. Justice Hoyt delivered the opinion of the court.

This suit was brought by the United States, R. H. Milroy,

as Indian agent, and several Indian plaintiffs, for themselves

and for the Yakima nation or tribe of Indians, of which they

are alleged to be members, to restrain the appellee, Frank

Taylor, from maintaining a fence around a large body of land

abutting upon Tum Water fishery in the Columbia River,

which fence the complaint alleges obstructs the land

approaches to said fishery, and thus prevents the whole

enjoyment thereof claimed by said Indians under their treaty

with the United States, entered into June 9, 1855, and ratified

by the Senate of the United States March 8, 1859. By his

answer the appellee admits the making and ratification of

said treaty, and the inclosing of said land by a fence upon a

portion thereof over which said Indians had been accustomed

to travel in going to and from said fishery; that there was no

fence built upon the side next to the river, the river itself

being the only means of inclosure on that side; but avers

that he had the right, as owner in fee of said land, to thus

inclose the same to protect his crops growing thereon,

notwithstanding said treaty.

Appellants replied, and the cause was tried upon these

pleadings. There are other issues raised by the pleadings,

but they are immaterial on this appeal, under the stipulation

upon which the decree was given, from which this appeal is

prosecuted. The stipulation referred to is as follows: —

“1. That the treaty mentioned in the complaint in this

action was made and concluded as therein alleged, and that

the plaintiffs are members of the Yakima tribe or nation of

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Appendix B

Indians, as alleged in the complaint. 2. That prior to and at

the time of entering into said treaty, the Tum water fishery,

mentioned and described in the pleadings was one of the

ancient, usual, and accustomed fisheries of said Y akima tribe

or nation of Indians, and referred to in said treaty; was used

and enjoyed as such by the Indians of said tribe in the manner

in the complaint alleged, and continued to be so used and

enjoyed therefor, except as hereinafter stated, and that said

Indian plaintiffs as members of said tribe or nation so used

and enjoyed the same. 3. That subsequent to the conclusion

and ratification of said treaty, and before the commencement

of this action, the said defendant, Frank Taylor, and his

several grantors, obtained patents from the United States to

the lands in the complaint and answer described, under the

homestead, pre-emption, and other land laws of the United

States, and said Taylor is still the owner thereof. 4. That

said lands extend to and border upon the Columbia River at

the site of said fishery, and are the same lands over and upon

which said Indians have heretofore been accustomed to go

and return from said fishery, and upon which they had landed

and cured the fish taken by them from said fishery, and where

they have been accustomed, during the fishing season, to

make their temporary abode and pasture their ponies. 5. That

since his acquirement of said land, said Frank Taylor, as

owner thereof, has caused the same to be inclosed by lawful

fences for the purpose of utilizing the same for agricultural

purposes, thereby preventing said Indians from entering upon

the same, as before they had been accustomed to do, under

the claim that the United States, by means of the said grants,

invested him and his said grantors with absolute title to said

lands, and the exclusive right to use the same. 6. That upon

these facts we submit to the court whether the defendant is

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Appendix B

entitled to a decree dismissing plaintiff's bill. If the decision

of the court should give the defendant the right to exclude

the Indians referred to in the complaint from his said lands,

the cause is to be dismissed and judgment entered for

defendant; but if the court decides that said Indians are

entitled to access over the lands of defendant to said fishery,

then the cause shall proceed upon testimony to be taken as

to the conduct of defendant complained of, in order to

determine what relief shall be granted therein.”

From the above stipulation, it will at once be seen that

the single question now to be determined is that of the rights

of the appellants under said treaty as against the appellee, as

owner of the land by title acquired from the United States

subsequent to said treaty under the homestead laws and other

acts of Congress.

The portion of said treaty under which appellants claim

their right to relief herein is as follows: “The exclusive right

of taking fish in all streams where running through or

bordering said reservation is further secured to said

confederated tribes and bands of Indians, as also the right of

taking fish at all usual and accustomed places, in common

with citizens of the territory, and of erecting temporary

buildings for curing them, together with the privilege of

hunting, gathering roots and berries, and pasturing their

horses and cattle upon open and unclaimed land.”

Both parties invoke the aid of the rule laid down by the

Supreme Court of the United States, that a treaty of this kind

is to be liberally construed in favor of the Indians, and that

in so far as the language used will allow, that construction

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Appendix B

will be adopted which will best subserve the object which

the Indians at the time the treaty was made would have been

most likely to have desired and understood. We must then

investigate the treaty in question in the light of this rule.

The appellants contend that this clause was a reservation

from the force and effect of other portions of the treaty of

certain rights therein specified, while the appellee insists that

it should be construed as a specific grant of rights by the

United States. We think the contention of the appellants must

prevail, as it seems to us that the Indians in making the treaty

would have been more likely to have intended to grant only

such rights as they were to part with, rather than to have

conveyed all, with the understanding that certain were to be

at once reconveyed to them. What did the Indians intend to

reserve to themselves by the words, “as also the right of

taking fish at all usual and accustomed places, in common

with citizens of the territory”?

It will be seen by the statement of facts above set out

that at the time this treaty was made there existed within the

territory which was the subject-matter of the treaty certain

ancient fisheries which had for generations been used as such

by said Indians, who had certain well-defined habits and

methods connected with such use. And it is contended on

the part of appellant that the effect of the words above quoted

was to reserve to the Indians the right to enjoy all of these

fisheries as they had heretofore.

While on the other side it is claimed that the liberal

interpretation of the words in the interest of the Indians would

make them apply, not to any particular places of fishing then

in use, but to all places which in the future might become

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Appendix B

usual and accustomed places of fishing, and that as to such

places they had the same rights as other citizens, and in

addition thereto, the right to use the shore for the purpose of

curing their fish.

Many arguments can be and have been made in favor of

each of these positions. But when we take into consideration

the facts disclosed by this record, and the further fact, which

the court knows as a matter of common knowledge, that these

Indians were always tenacious in adhering to past customs

and traditions, we think the contention of appellant must

prevail, as we think it much more natural that these Indians

should have desired to preserve as fully as possible a right

then and for a long time before enjoyed by them, rather than

to have provided for a right to be enjoyed in unknown ways

and under new conditions, even although such new rights

might possibly be of more avail than the old; besides, the

construction contended for by appellee would make the right

to use the shore for the purpose of erecting houses and drying

fish a servitude imposed upon all the shore line of the

territory, so that every person occupying the same would be

liable to have his occupancy disturbed by such floating

servitude, though at the time he purchased, the water in front

of the land had never been a place used for taking fish. And

it seems to us that this servitude would, when viewed from

the standpoint of the United States as a contracting party,

have been much more objectionable than the other one,

though in the minds of the Indians, as the other contracting

party therein, old places and methods would doubtless seem,

and would probably be, to them of much greater value. The

appellee further claims that even if the above position is

correct, and the Indians were entitled by said treaty to the

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Appendix B

rights claimed, still that such rights do not now exist as

against the defendant, as by the act of Congress subsequently

passed, under which he has taken this land, such treaty has,

as to him, been repealed; but with this position we cannot

agree, as these laws simply authorize the appropriation by

the settler of unappropriated lands, and only authorize the

extinguishment of the title which the government holds at

the time of the appropriation. And if the land selected by the

settler has at such time any servitude or easement impressed

upon it, he takes subject thereto.

It follows from what has been said, and from the

agreement of the parties, that the judgment of the District

Court must be reversed, and the cause remanded for further

proceedings in accordance with such stipulation and this

opinion.

GREENE, C. J., and LANGForD, J., concurred.