Appendix — Puyallup Tribe v. Department of Game of Wash.

\ Ad

APPENDIX A

TREATY AND STATUTES INVOLVED

EXHIBIT A

MEDICINE CREEK TREATY.

FRANKLIN PIERCE .

President of the United States of America .

TO ALL AND SINGULAR ‘TO WHOM THESE PRESENTS

SHALL COME, GREETING:

Wueness a treaty ‘was made and concluded on the

She-nah-nam, or Medicine Creek, in. the Territory of.

Washington, on the twenty-sixth day of December,. one

thousand eight hundred and fifty-four, between the Uni-. -

ted States of America and the Nisqtially and other bands

of Indians,. which treaty is in the words following, to

wit:—

Articles of. sSieininias and convention made and con-

cluded bn the She-nah-nam, or Medicine Creek, in the

Territory of Washington, this twenty-sixth day of Decem-

. in the year one thousand eight hundred and fifty-

ur, by Isaac L. Stevens, governor and superisféndent

* of "Indiasi affairs of the said Territory, on the part of ‘the

United States, and the undersigned chiefs, headmen, ‘and

delegates of the Nisqually, Puyallap, Steilacoom, Squavw- -

ksin, SHomamish, Steh-chass, T’Peeksin, Squi-aitl, and

Sa-heh-wamish tribes and bands of Indians, occupying

the lands lying round the head.of Puget's Sound and the

adjacent inlets, who, for the purpose of this treaty, are

to regarded. as one nation, on behalf of said tribes and

beni, and duly authorized by them.

“Articie I. The said tribes and bands of Indians hereb

cede, relinquish, and convey to the United States,

their right, title, and interest in and to the larids ‘and

country occupied by. them, bounded and described as

follows, to wit: Commencing at the point on the eastern

side of Admiralty Inlet, known as Point Pully, about

;

A-2

midway between Commencement and Elliott Bays; thence

running in a southeasterly direction, following the divide

-. between the waters of the Puyallup and Dwamish, or

White rivérs, to the summit of the Cascade Mountains;

thence southerly, along the summit of said range, to a

point opposite the main source of the Skeokum Chuck

Creek; thence to and down said creek, to the coal mine;

’ thence northwesterly, to the summit of the Black Hills;

thence northerly, to the upper forks of the Satsop River;

thence northeasterly, through the portage known as’ °

_ Wilkes’s Portage, to Point Southworth, on the western

_ side of Admiralty Inlet; thence around the foot of Vash-

on’s Island, easterly and southeasterly, to the place of

beginning. %\ | ; |

by |

ARTICLE II. There is, however; reserved for the present

use and occupation of the said tribes and bands, the fol-

lowing tracts of land, viz: The small island called Klah-

che-min, situated opposite the mouths of Hammersley’s

and Totten’s inlets, and separated from Hartstene Island

by Peale’s Passage, containing about two sections of land —

by estimation; a square tract containing two sections, or

twelve hundred and eighty acres, on Puget’s Sound, near

the mouth of the She-nah-nam Creek, one mile west of

the meridian line of the United States land survey, and-

a square tract containing two sections, or twelve hundred

and eighty acres, lying on the south side of Commence-

ment Bay; all which tracts shall -be set apatt, and, so far —

as necessary, surveyed and marked out for their exclusive .

use; nor shall any white man be permitted to, reside upon

. the same without permission of the tribe and the superin-

‘. tendent or agent. And the said tribes and bands agree

. to.remove to and settle upon the same within one year

after the ratification .of this treaty, or sooner if the means

are furnis them. In the mean time, it shall be lawful

for them to reside upon any ground not in the actual

claim and occupation of e¢itizens of the United States,

and upon any ground claimed or occupied, if with the

'. permission of the owner or claimant. If necessary for the

public convenience, roads may be rin through their re-

serves, and,-on the other hand, the right of way with free

-access from the same to the nearest. ae ighway is ~

secured to them. oe ;

ise “ a eee ees eee

.

ee

A-3 -

ArTICLE III. The right of taking fish, at all 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 bunting, gathering

co Bae

roots and berries, and pasturing their horses on o

unclaimed lands: Provided, however, That they not

take shell fish from any beds staked or cultivated by

citizens, and that they shall alter all stallions not intended

for breeding horses; and shall keep up and confine the

latter.

‘ArTIcLE IV. In consideration of thei above cession,

the United States agree to pay to the suid tribes .and

_ bands the sum of thirty-two thousand five hundred. dol-

lars; in the followin manner, that is to say: For the first

year after- the ratification hereof, three thousand two

- hundred ané *ifty dollars; for the next two years, three -

. _» thousand doiiars each year; for the next three-years two

thousand dollars each-year; for the next four years fif- .

teen hundred dollars each year; for the next five- years ©

twelve hundred dollars each year, and for the next five

years one thousand. dollars each year; all which said ‘sums

of money shall be applied to’ the use and ‘benefit of the

said Indians, under the direction of the President of the

United States, who may from time to time determine, at

-his’ discretion; upon: what beneficial objects to expend

the same.’ And superintendent of Indian affairs, or ’

other proper officer, shall each year irfform the President

of the wishes of said Indians in respect thereto.

-ARTICLE V. To enable the said Indians to remove to

and settle upon their aforesaid reservations, and to clear,

fence, and break up a sufficient quantity of land for

cultivation, the. United States further agree to pay the.

sum of three thousand two hundred and fifty dollars,

to be laid out and etpended under the direction of the

. President, and in such manner as he shall. approve.

-Articte VI. The President may hereafter, when in

his opinion the interests of the Territory may require,

and the welfare of the said Indians be promoted, remove

them from either or all of said reservations to such other.

suitable. place or places within said Territory as he may

e «

A4 . |

~ . deem. fit, on remunerating them for their improvements

and the expenses of their removal, or may consolidate |

them with other friendly tribes or bands. And he may

further, at his discretion, cause the whole or any por-

- tion of the lands hereby reserved; or of such other: lana

as may ‘be selected in lieu thereof, to be surveyed: into.

lots, and assign the same. to such individuals or families

as are willing to avail themselves of the privilege, and

‘ will locate on the same as a permanent home, on the same

terms and subject to the same regulations as are provided

in the sixth article of the treaty with the Omahas, so far

as the same may be applicable. Any substantial improve-

ments heretofore made by any Indian, and which he

shall be compelled to abandon in consequence of this | :

treaty, shall be valued under the direction of the Presi-

dent, and payment be miade accordingly therefor.

ArTICLE VII. The annuities of the aforesaid tribes snd

bands shall not be taken to-pay the debts of individuals.

ArtTicLE VIH. The aforesajd ‘tribes and bands ac-

- knowledge their dependence: on the government of the

. United States, and promise. to be friendly with all citi-

zens thereof, and pledge themselves to commit no depre- .

dations on the property of such citizens. And should any

one or more of them. violate this pledge, and the. fact

be satisfactorily proved before the agent, the property

. taken shall be returned, or in default thereof, or if in-

jured or destroyed, compensation may be made by the

government out of their annuities. Nor will they make

war on any other tribe except in self-defence, but will

submit ‘all matters of difference between them and other

Indians to the government of the United States, or its

agent, for decision, and abide thereby. And if any of the

said Indians commit any depredations on any other In-

dians within the Territory, the same rule shall revail

as that prescribed in this article; in cases of depredations_

against citizens. And the said tribes agree not to shelter

or conceal offenders against the Jaws of the United States,

but to deliver them up to the’ authorities for trial. —

ArticLE. IX. The above tribes and bands are desirous

to exclude from their reservations the use of ardent spirits,

and to prevent their peoplé from drinking the same; and,

A-5 ; | |

. : a a ee 2: +4 e > \

therefore, it. is provided, that any Indian belongin

said tribes, who is pet A of bringing liquor into

reservations, or who drin

'

liquor, may have his or her

roportion: of the annuities withhéld from him or her -

r such time as the President’ may determine.

Artic X. The United States’ further agree to estab- °

lish at the general ‘agency for the district of Puget’s

S ; Within one year from the ratification hereof, and -

to, support, for a period of twenty years, an agricultural

and industrial school, to be free to children of the said

trives and bands, in common with those of the other

tribes of said district, and to provide the said school-with

a suitable instructor or instructors, and also to provide .

a smithy and carpenter's shop, and furnish them with

the necessary tools, and employ a blacksmith, carpenter,

and farmer, for the term of twenty years, to instruct the

Indians in their respective occupations. And the United

States further agree to employ a physician to reside at

- the said central agency, who shall furnish medicine and

advice to their sick, and shall vaccinate them; the ex-

penses of the said school, shops, eniployees, and. medical —

attendance, to be defrayed by the United States, and not

deducted from the annuities.

ArticLe XI. The said tribes and bands agree to free

all slaves now held by them, and not to purchase or ac-

quire others hereafter. | es

ArTICLE XII. The said tribes and Bands finally agree |.

not to trade at Vancouver's Island, or elsewhere out of

the dominions of the United States; nor shall foreign

Indians be permitted to reside in their reservations a

out consent of the superintendent or agent.

Articte ‘XIII. This treaty shall’ be obligatory on the

. contracting parties as soon as the same shall be ratified -

by the President and Senate of the United, States.

In testimony whereof, the said Isaac I. Stevens, gov-

ernor and. superintendent of Indian Affairs, and the a»-

dersigned chiefs, headmen, and delegates of the afm.

said tribes and bands, have hereunto set their hands asd

bs

to

aid

h

nee ee

PEERS rT

lm.

| 2

seals at the place and on the day and year hereinbefore |

written. .

SA CI. STEVENS,

rT Siena r ,

”

Governor Superintendent Territory of* Washing-

ton. .

- Qui-ee-metl, -— ‘. his x mark. [L. S..

Sno-ho-dumset, : his x mark. [L. S. |

Lesh-high, © , his x mark. [L. S.|

Slip-o-elm, —s_. his x mark. [L. S._

' Kwi-ats, : his x mark. [L. S.|

Stee-high, : _ his x mark. [L. S.|

Di-a-keh, his x mark. [L. S.]

ee Se - his x mark. [L. S.]

* Squa-ta-hun, his_x mark. [L. S.|

Kahk-tse-min, : ae his x mark. [L.S.] .

Sonan-o-yutl, - his x mark. [L. S.]

K]-tehp, . : * . his x mark. [L. S.|

Sahl-ko-min, ie | his x mark. [L. S.|

-. Tbet-ste-heh-bit, ~_ - his x mark. [L. S.]

Tcha-hoos-tan, eae his x mark. [I.. S:]

Ke-cha-hat, - =a - his x mark. [L. S.] »

. Spee-peh,,- . _. his x mark. [L.S..

- Swe-yah-tum,. . : his x mark. LF.

Chah-achsh, 7 | his x mark. [L. S.]

Pich-kehd, — ! his x mark. [L.°S.

S’klah-o-sum, _ * his x mark. {L. S.

Sah-le-tatlh - = his x mark. [L. S.

- - See-lup, ‘his x mark. [L. S.|

E-la-kah-ka, © | his x mark. [L, S.|

Slug-yeh, Seg his x mark. [L. S.|

Hi-nuk, 3 - | _ Seis x mark. IL. S.)

_-Ma-mo-nish, sg ar nate. TL.-S. |

_ Cheels, his x mark. [L. S.]

- ‘Knutcanu, his’x mark. [L. S.].

Bats-ta-kobe, - his x mark, [L. S.|

» Win-ne-ya, «-: : , his x mark. [L. S.]

o-out, : _ his x mark. [L. S.] °

Se-uch-ka-nam, : his x mark. [L. S.|

| Gecakien, a his x mark. [L. S._

Wuts,un-a-pum,- ae his x mark. [L. S.|

Quut-a-tadm, - . his x mark. [L. S:]

‘ Quut-a-heh-mtsn, his x mark. [L. S._

os Deiis Depa epuineien

SS aig aie Daal sro aS

a as ; 7 | A-7 a

Yah-leh-chn,

his x mark. [L. S.]

To-lahl-kut, ~ et his:x mark. [L. S.|

-Yul-lout, * +s his x mark. [L. S.J:

See-ahts-oot-soot, - his x mark. [L. S.]

- Ye-tahko, his x mark. [L. S.|

We-po-it-ee, his x mark. [L. S.!

Kabh-sld, ess his x mark. [L. S..

La h-hom-kan, ° his x mark. [L. S.| pa

| Pah-how-at-ish, his x mark. [L. S.| a

Swe-yehm, his x mark. [L. S.

ee 2 Sah-hwill, his x mark. [L. S.|

Se-kwaht, his x mark. [L. S..

Kah-hum-klt, his x mark. [L. S.

Yah-kwo-bah, Cee » his x mark. [L. S..

> Wut-sah-le-wun, — his x mark. [L. S..

. Sah-ba-hat, . i -- ° .° his x mark. [L. S.

Tel-e-kish, his x mark. [L. S.|

’ Swe-keh-nam, © - his x mark. (L. S.)

Sit-oo-ah, . _.. Jhis x mark. [L. S.]

Ko-quel-a-cut, 4 his x mark. [L. S.|

Tack, ©. his x mark. [L. S.|

_ Keh-kise-be-lo, his x mark. [L. S.]

' Go-yeh-hn, | ~*~ his x mark, [L. S.]

Sah-putsh, - a his. x mark. _ S.]

Executed in the presence of us:—.

M. T. Simmons, Indian. Agent.

James Doty, Secretary of the Commission. |

C. H. Mason, Secretary Washington Territory.

W. A. Slaughter, 1st Lieut. 4th Infantry.

_ James McAlister,

E. Giddings, Jr.

George Shazer,

Henry D. Cock,

-S. S. Ford, Jr..

John W. McAlister, © 3

} Clovington Cushman, ~

| ae Peter Anderson,

Samuel Klady,

W. H. Pullen, |

A-8 =

P. O. Hough, ;

E. R. Tyerall,

George Gibbs, :

Benj. F. Shaw, Interpreter,

Hazard Stevens.

And whereas the said treaty having been submitted ©

to. the Senate of the United States, for its constitutional

action thereon, the Senate did, on the third day of

March, one thousand eight hundred and fifty-five, advise

and consent to the ratification of its articles by a resolu-

tion in the words and figures following, to -wit:—

“In Executive} Session, Senate. of the United States,

, * “March 3, 1855.

“Resolved, (two thirds of the senators present concur- —

ring.) That the Senate advise and consent to the ratifica-

tion of the articles of agreement and convention made '

and concluded on the She-nah-nam, or Medicine Creek,

in the Territory of Washington, this twenty-sixth day of

December, in the year one thousand eight hundred and

fifty-four, by Isaac I. Stevens, governor and superin- |

tendent of Indian affairs of the said Territory, on the.

part of the United States; and the undersigned chiefs,

headmen, and delegates of the Nisqually, Puyallup, Steil-

. acoom, Squawksin, S'Homamish, Steth-chass, T’Peeksin,

Squi-aitl, and Sa-heh-wamish tribes and bands of In-

_dians rs the lands lying round the head of Pu-

get's Sound and the adjacent inlets, who, for the purpose

- of this treaty, are to be ragarded as one nation, on behalf —

of said tribes and barids, and duly authorized by them.

“Attest: ie

ASBURY DICKINS, Secretary.”

Now, therefore, be it. known that I,» FRANKLIN

PIERCE, President of the United States of America, do, |

in’ pursuance of the advice and consent of the Senate,

as expressed in their resolution of the third day of March,

one thousand eight hundred and fifty-five, accept, ratify,.

and confirm the said treaty. :

In testimony whereof, I have caused the seal of the.

e

6

fe ie A te Sa Ot Ste GK SER Rah iN DEAE Pate teins

A-9

United States to be hereto affixed, having signed. the

same with my hand. |

[x. s.] Done at the city of Washington, this tenth day of. .

April, in the year of our Lord one thousand eight

- hundred and fifty-five, and of the independence -

of the United States thé seventy-ninth: —

7 | _ . FRANKLIN PIERCE

_ By the President: es

W. L. Marcy, Secretary of State.

FEDERAL STATUTES INVOLVED

62 Stat. 757. 18°U.S.C. 1151. Indian ‘country de

oo | “gs de

' Except as otherwise provided jn sections 1154 and

1156 of this title, the term “Indian. country,” as used in

. this chapter, means (a) all land within the limits of any

Indian reservation under the jurisdiction of the United

States government, notwithstanding the issuance of’ any

patent, and, including rights-of-way running through the

réservation, (b) all dependent Indian communities within

the borders of. the United States whether within the

-original-or subsequently acquired territory thereof, and

whether within or without the limits of a state, and (c)

all Indian allotments, the Indian titles to which have. .

not: been extinguished, including rights-of-way running

through‘the same. June 25, 1948, c. 645, 62 Stat. 757;

May 24, 1949, c..139, Sec. 25,'63 Stat. 94.

. 67 Stat. 588, 18 U.S.C. 1162: State jurisdiction over

offenses committed by or against’ Indians in the. In-

dian country ~ ;

‘(a) Each of the States or Territories listed -in the fol-

lowing table shall have jurisdiction over offenses com-

’ mitted by or against Indians in the areas of Indian coun- |

try listed opposite the name of the State or Territory to

the same extent that such State or Territory has juris-,

diction over offenses committed .elsewhere within the

State or tentory. and the criminal Iaws. of such State or

- Territory shall have the same force and effect within

we ce nobbn anes Mo ite ele a om 2 <ou-ae. — eee es Rae alee. -" ~ —le ——

Pe ee ee Pe

VAG MPA Ls sh bi Ast he Ph

A-10 . ae :

such Indian country as they have elsewhere within ‘the

State or Territory: :

~. Alaska... .. . . All Indian country within the Territory —

California ..... All Indian country within the State

. Minnesota ..... All Indian country within the State,

| _ .except the Red Lake Reservation

Nebraska .... . All Indian country within the State

. Oregon ..... . All Indian country within the State, _

ee except the Warm Springs

. | .. °* Reservation

‘Wisconsin . . . . . All Indian country within the State

(b) Nothing in this section shall authorize the aliena-

tion, encumbrance, or. taxation of any real or personal

property, including water rights, belonging to any Indian -

_or any Indian tribe, band, or community ‘that is held in’

‘trust by the United States-or is subject to a restriction

against jalienation imposed by the United States; or shall °

authorize regulation of the use of such property in a

manner inconsistent with any Federal treaty; ‘agreement,

or statute or with any regulation mad= pursuant-thereto: —

. ‘or shall deprive any Indian or any Indian tribe, band, or

community of any right, privilege, or immunity afforded

under Federal treaty, agreement, or statute with

to hunting, trapping, or fishing or the control, licensing,

or regulation thereof. - . hh

_ (ec). The provisions: of sections 1152 and 1153 of this ~

ter shall not be applicahle within the areas of In-

dian country listed in MA (a) of this section. Add-

ed Aug. 15, 1953, c. 505, Sec. 2, 67 Stat. 588, and amended

Aug. 24, 1954, c. 910, Sec. 1, Stat. 795; Aug. 8, 1958, -

Pub.L. 85—615, Sev. 1, 72 Stat. 545. ph ee

CHAPTER 37.12, REVISED CODE_OF WASHINGTON

- 37.12.010 Assumption of criminal and civil jurisdic-

' tion by state. .

«- The state of Washington hereb re and binds

_ itself to assume criminal ‘and civil jurisdiction over In- |

dians and Indian tertitory, reservations, country, and

lands within this state in accordance with the consent of

the United States given by the act of August 15, 1953

_ (Public Law- 280, 83rd Congress, Ist Session), but such

—

det queens. ew 4

an pedeee~ ee eee

ey All

assumption of jurisdiction shall not apply to Indians when

on their tribal lands or allotted lands lin an established’

Indian reservation and held in trust by the United States

or subject to a restriction against alienation imposed by

the United States, unless the provisions of R.C.W. 37.12.-

021 have beén invoked, except for the following:

(1) Compulsory school attendance; _

(2) Public assistance; —

(3) Domestic relations;

(4) Mental illness: fe.

(5) Juvenile delinquency;

(6) Adoption proceedings; _

(7) Dependent children: and

(8) Operation of motor vehicles upon the public

. Streets, alleys, roads and highways.’ Provided further,

That Indian tribes that petitioned for, were granted and

became subject to state jurisdiction pursuant to this chap-

ter on or before March 13, 1963 shall remain subject to

state civil and criminal jurisdiction as if chapter 36, Laws

of 1963 had not been enacted. oe

37.12.021 Resolution off request—Proclamation: by

governor, 1963 act. | |

Whenever the governor of this state shall receive from

i y, duly recognized by the Bureau of In

Affairs, of any Indian tribe, community, band or group

in this state a resolution expressing its desire that its peo-

ple and lands be subject to the criminal or civil jurisdic-

tion of the state vf Washington to the full extent author-

ized by federal law, he shall issue within ‘sixty days a

proclamation to the effect that such juris“iction shall

apply to all Indians and all Inidian territory, reservations,

country, and lands of the Indian body: involved to the

_ Same extent that this state exercises civil and critninal

. jurisdiction or beth elsewhere within the state: Provided,

_ That jurisdiction assumed pursuant to this section shall

nevertheless be subject to the limitations set forth in

R.C.W. 37.12.060.

_ the wy we of any tribe or the tribal council or other =

A-12

_ $7.12.030 Effective date for assumption of jurisdic-

tion—Criminal causes. 7

Upon March 13, 1963 the state of Washington: shall

assume jurisdiction over offenses as set forth in R.C.W.

37.12.010 committed by or against Indians in the lands

prescribed iri R.C.W. 37.12.010 to the same extent that

this state has jurisdiction over offenses committed else-—

where within this state, and such.criminal laws of this

state shall have the same force and effect within such |

lands as they have elsewhere within this state.

37.12.040 Civil causes.

Upon March 13, 1963 the state of Washington shall as-

sume jurisdiction over civil causes of action as set forth

in R.C.W, 37.12.010 between Indjans or to which Indians ~

are parties which arise in the lands prescribed in R.C.W.

37.12.010 to the same extent that this state has jurisdiction -

. over other civil causes of action’ and, except as otherwise

provided in this chapter, those civil laws of this-state that

‘are Of general application to private persons or private

gh shall have the same force and effect wif&in such

in as they have elsewhere within this state.

' 37.12.050 State’s jurisdiction limited by ‘federai law.

The jurisdiction assumed pursuant to this chapter shall

- be subject to the limitations. and provisions of the federal

act of August 15, 1953 (Public Law 280, 83rd Congress, .

Ist Session ). a

37.12.060 Chapter limited in application.

Nothing ‘in this chapter shall authorize the alienation,

encumbrance, or taxation of any real or personal property,

including water rights and tidelands, seme. to any

Indian or any Indian tribe, band, or community that is

held in trust by the United States or is subject to a restric-

tion against alienation imposed by the United States; or

shall authorize regulation of the use of such property in a

- manner inconsistent with any federal treaty, agreement,

or statute or with any regulation made pursuant thereto;

_ oF shall confer jurisdiction upon the state to adjudicate,

‘in probate proceedings or otherwise, the ownership or

Als

: a

right to possession of such roperty or-any interest there-

in; or shall deprive any Indian or any Indian tribe, band,

forded -under fede

or community of ~ | right, privilege, or immunity af-—

treaty, agreement, statute, or ex-

ecutive order with respect to Indian land grants, hunting,

. trapping, or fishing or the control, licensing; regulation

ereof. ‘

37.12.070 Tribal ordinances, customs, not inconsis-

tent with law applicabie in civil causes.

Any tribal ordinance or custom heretofore or hereafter.

' adopted by an Indian tribe, band, or community in the:

exercise of any authority which it may possess shall,. if

not inconsistent with any applicable civil law of th

state, be given: full-force and effect in the determination

of civil causes of action pursuant to ‘this section.

A-14

APPENDIX B |

OPINIONS AND JUDGMENT BELOW —

| No. 158069

TRIAL COURT’S

MEMORANDUM DECISION

DEPARTMENT OF GAME OF THE STATE

oF WASHINGTON, and the DEPARTMENT |

OF FIsHERIES OF THE STATE OF WASHINGTON,

’ Plaintiffs;

Vv.

Tue Puyaiup Trisr, INc., a Federal

sae Organization, et al.,

Defendants.

IN THE SUPERIOR COURT OF-THE STATE OF

WASHINGTON IN AND FOR PIERCE COUNTY

A few days before Christmas in 1854, Governor Stev-

ens, representing the United States, met with representa-.

F the Nisqually and Puyallup Indian tribes, on the

‘banks of ‘Medicine Creek, and negotiated a treaty con-

‘cerning land and hunting and fishing rights. The treaty -

‘tives o

was reduced te writing and signed by the authorities of

the Government. It was also signedby the Indians repre-

s, but since they could neither read nor

5. At this tirne there were only a few white

settlers, and the Puyallup Indians consisted of various :

groups with villages along the river and on the shores of

Commencement Bay. Any ownership of land the Indians

may have had was communal in nature.

At that time the river flowed peacefully into Commence-

ment Bay; there were no dams on the river, no factories, no -

_ lumber mills, no commercial and industrial developments,

no municipal sewage—nothing such as exists today. _

The Puyallup Indians who inhabited the lower reaches

a.

> = >

— SN EES ctl nn he ote arte ES EG ites ook ee ine RRS a

atures\ were merely indicated by their -

mark (Ex. “A’). This treaty was ratified by President

: A-15

of the river and the area. around Commencement Bay

depended for their subsistence, to a large degree, on the:

fish they ‘caught in these waters and the shellfish they

found on the shores.

- “The right of taking fish, at all usual and accus-

tomed grounds and stations, is further secured to said

Indians in common with al citizens of the Territory, _

and of erecting temporary houses for the purpose of

curing, together with the privilege of hunting, gath-

ering roots and berries, and gow bey horsés

-On open and unclaimed .lands: Provi, d, however,

_ That they shall not take shellfish from any beds

_ staked or cultivated by citizens, and that they shall

alter all stallions not intended for breeding-horses,

- sand shall keep up and confine the latter.”

Now, over a hundred years later, we are concerned with

the rights of the defendants under this Article of the -

treaty. : 7 |

Since the beginning of this action, the defendants

have sought to have the same dismissed, on the grounds

that this court does not have jurisdiction. This motion to

dismiss has heretofore been denied, and the court adheres °

to the previous rulings herein on that point without

er comment. —

. Three primary questions are presented to this court for

_ 8. Are- the regulations sought to be enforced by the

determination. They are:

' 1. Is there a Pu allup tribe which succeeds in interest

to the rights o r signers of the Treaty of Medicine

Creek?-

2. Is Ser an existing reservation of the Puyallup tribe,

, what are its boundaries?

state reasonably necessary for the conservation of fish?

It may be that’ the answer to any one of these ques-

tions would obviate the necessity of answering the others;

aa

a,

_ Article 3 of the Medicine Creek Treaty provides as

follows: |

aD

7 Bick Judas aes

P

<—>--

however, in view of the facts and law involved, and the “~~~

7 lupi tribe evidenced by their trib

interest of the parties in the answers to all

three questions,

the court proposes to-answer each one.

In_ answering these questions, it is necessary to look

at the facts and the law as they exist today, apd not as

_ they existed over 100 years ago or even 50 years ago, as

many changes have occurred in the intervening years.

QUESTION No. 1:

According to the testimony of Dr. Herbert C. Taylor,

Jr., an anthropologist and Dean at Western Washington -

_ College, in 1790 there were about 800 to 1000 Puyallup

Indians; in 1839 there paring in 1844, 207, and by -

1854, at the time of th ing of the treaty, there were

about 100. eee

¥ .

Dr. Taylor says the lower Puyallup Indians were assimi-.

lated into the white development of the area and’-were-

_ destroyed as a cultural identity.

He defines a tribe as “A group of a simple kind, in a

definite locality, speaking a common language, with a

single government.” The Puyallups in 1854 were a tribe,

but are not now by this definition. They can only be

identified pow by sihectianine, |

Dr. Colin E. Twedell, sho an anthropologist, was able —

to trace many of- the individuals listed in the 1929-roll of

Puyallup Indians by at least some degree of blood, back

_ to the original signatories of the: treaty. Dr. Taylor says

that the Puyallup Indian culture is dead—that: the’ only

thing that survives are memories. They are now Ameri- _

cans by “cultural assimilation;” what was two cultures

has become blended into one. ) )

Defendants contend there is a présent, existing Puyal-

aka of 1929 (Ex. “H”)-

and that it has been recognized by the Federal govern- -

ment, and only Congress can terminate their tribal exis-

4°

tence. -There are 344 members according to the 1929 roll.

Recognition for one purpose does not mean, however, .

z

Pat eae erect Sa tas ite ao eis Sean

or ee.

~ another, doesn’t alter the fact that ‘the purpose may be

merely social, fraternal, et cetera.

er ae |

that there is recognition: for: all siibtins. Yn Gok that |

the government would take cognizance of a tribal roll

for distribution of funds does not mean recognition as suc-

cessors to the rights of signatories to the treaty. The testi-

- Inony at the trial indicated that the roll was prepared to

‘cover the distribution of funds, and that blood: quantum

was not a necessary prerequisite for inclusion in the roll.

Is the present Puyallup tribe any different than say the

Italian-American Club, the Order of Ahepa, or Sons &

Daughters of Norway? ‘The fact that some blood relation-

ship may be required by one organization and not by

.

It is urged that the tribe is.more than this because

they have a communal right granted by the treaty which

carries on down to the present time. ; uae

The evidence indicates, however, that most of the mat-

ters considered at meetings of the tribe, or tribal council,

deal with enrollment, qperation of the cemetery, and the

disposition of trust fund or

The only Indians who appear to assert their rights to

fish, are the individual defendants other than the tribe

itself. In an effort to establish the ownership of a fishin

right, some of the’ Indians~ paid to the tribe a. fee o

_ $25.00 for the right to fish for a year, but there was no.ef-

fort to. enforce the licensing fee, and its collection was

dropped. It thus appears that except as they are actively .

defending this suit, the tribe has not in fact at any time

before asserted its communal ownership of fishing rights.

The defendants in this case are no longer wards of the

government. They are citizens of the United States, and

- over the years have blended their: status with all other

citizens to the extent that they no longer retain any ex-

elusive rights that were granted by the treaty. To say

_ that they have any superior rights to others would make

them super citizens, enjoying rights and -privileges not

given to others in ‘the community. — . ;

At the time of signing the treaty, it would probably

. * ail

4

Se ee ee

; "

t .

3

i

MALE yt salle SiS AU MM Halen ci wits

A-18

- be safe a eet that they were savages. Savage, as defined

in Webstér's 3rd International Dictionary, is “a person

living in a primitive state or belonging to. a primitive

society.” : |

' Would anyone assert that they! are savages now? Cer- ~

tainly not, and they would‘ be justifiably insulted if

anyone would do so. 4 oaak

They are citizens of our, county and ‘state, with all

the rights, privileges and responsibilities of any other citi-

zen, no more—no less. “

What have our courts said ahout continued recognition

of a tribe? ‘The case of United States v. Sandoval, 58

L.Ed. 107, a 1913 case, has been relied upon by both

.sides in discussing this question. The’ case arose out of a

criminal prosecution .for the sale of intoxicating liquor

to the Pueblo Indians in the state of New Mexico.

The court — out that the lands belon ging*to the

_ several Pueblos vary in quantity, but usually embrace

— 17,000 acres; held in communal, fee simple owner-

ship. vhs

This alone would distinguish the Puyallup Indians

from the Pueblos. sc.

Further identifying the ‘Pueblos; the court said:

<<

. .. . Always living in separate and isolated com-

munities, adhering to primitive modes of life, largely

_ influericed by superstition and fetichism, and chiefly

——— according to the crude: customs inherited

‘from their ancestors, they are essentially. a simple, —

uninformed, and jnferior people.” a

“Th 1854, the Puyallups could, prob bly be distin-

- guished from the white settlers on each df these charac-

-, teristics, but as to each of these characteristics in 1965, - -

there is nothing to distinguish the Yidians from any citi- '

zen: of the country. ate

‘The court further pointed out that the Pueblos were.

simple and ignorant people, dependent upon the fostering

igus ss be re eas

isis Ati Scab inna sl

Y

A-19

care and protection of the government, and there was

even a New Mexico statute which excluded them from

the privilege of voting. . fei oe

By contrast, the present Puydllups are not simple and

ignorant, are not dependent upon the care and protection

of the government, and have equal voting rights with all

other citizens. oe My : :

The cou went on to say: |

“It is for Congress, not the courts to determine |

when the true interests of the Indian require his re-

lease from guardianship. It is only that in Ps 9 of

distinctly Indian communities the questions whether,

to what extent, and for what time they shall be recog-

nized and dealt with as dependent tribes requiring

the guardianship and protection of the United States

are’ to be. determined by Congress and not by the

courts.” — | :

The _Puyallups are not now wards of the government,

are not distinctly Indians from: the point of view of their .

_ Status as citizens, and, therefore, this court can’ deter-

mine for itself how they should be recognized and dealt

with.

The right of the courts to deal with Indians directly,

considering their changed status was dealt with in three

early cases by Judge Hanford of the U.S. District Court

for the Western District of Washington.

The first was that of United States v. Kopp, 100 Fed. -

160, a 1901 case. . wae = tee ?

Judge Hanford there said: 89 > Miata

“. ... Since the decision of the circuit court of a

peals in that case (Ross v. Eells, 56 Fed. 855.) -the

conditions have been materially changed “by actual”

sales of a considerable part of the reservation under

the provisions of-the act, of 1893 above referred to.

It is certain that the purchasers from the commis-

sioners appointed pursuant to that statute cannot be

lawfully evicted from their property, and I hold that

See

ae

A-20 ©

by the subdivision and alienation of a cofsiderable

- ' part of ‘the patented land the reservation has been

abolished,: except the part retained as a site for an

Indian training school, and use of. the government

for other purposes. The circuit court of appeals agreed

with this court in holding that the sixth section of

the act of February 8, 1887, confers the right of citi- -

zenship upon. ithe Puyallup Indians to whom lands

were patented under the treaty of 1854; and, so far -

as the opinion delivered by Mr. Justice McKenna

_indicates the mind of the court, there is no disagree-

ment with this court. as to the nature of the estate -

granted by the patents. I feel justified, therefore, in

adhering ‘to the conclusion reached in that case, — _

that each patent conveyed ’a title: in fee simple, sub- —

ject to forfeiture upon conditions: subsequent, and

with a ag vem upon the right of alienation for a

‘period to’ be determined by future legislative enact-

ments.” | :

The court said:

“The Puyallup Indians holding lands under patents

of the tenor above set forth are citizens of the Unit-

ed States having‘all the rights, privileges. and immu-

nities of other citizens, and they are not under guar-

dianship of the United States government, nor under

the charge of any. Indian superintendent or agent.” ©

- ' United States v. Ashton, 170 Fed. 509 (1909) was an

action to quiet title to eertain land, where the court:held _

that although the tribe had not been dissolved by any for- .

mal proceeding, it was disintegrated by the enfranchise-

ment of its members. This case will be referred to again

under the question concerning the existence of the reser-

_ yation and its boundaries. :

In re Celestine, 114 Fed. 551 (1902) the court said.

. | Equality of rights and of. responsibilities is

‘an incident of ¢itizenship, and those Indians ‘who

have become citizens may. be likened to the Negroes

inthis country since their enfranchisement by the

- fifteenth amendment to the constitution, of whom the

° = Pa

52 : : , ; a a

a

. ° : sf

dat nase _- ats ant

A-21

‘Supreme Court, in an opinion written by Mr. Justice 3

Bradley, has said:

| ° |

““When a man--has emerged from slavery, and by Se

the aid of beneficent legislation has shaken off the

inseparable concomitants of that’ state,-there must _

be some stage in the progress of his elevation when

_ he, takes the rank of a mere citizen, and ceases to be |

the special favorite of the laws, and when his rights

as a citizen or a man are to be protected in the

ordinary modes by which other men’s rights are pro-

tected.’ Civil Rights Cases; 109 U.S. 25, 3 Sup. Ct.

81-27 L.Ed. 844.” |

It is urged that the treaty with the Indians was a treaty

"with a separate nation ‘and that as such only Congress can

_ Indians individually and as a tribe, so far as that term is,

States as well.

5 e a g :

Montoya v. United States, 45 L.Ed. 521 (1901), dis-

make or change treaties—this despite the fact that the

applicable, are within the territorial limits of the United

States, and the Indians are now citizens of | the United

’

cusses Indians as nations in the. following language:

“The North American Indians do not; and never '

have, constituted ‘nations’ as that word is used. by

writers upon international law, although in a great

number of treaties they aré designated as ‘nations’

as well as tribes.’ Indeed, in negotiating with the In-

_dians the terms ‘nation, ‘tribe,’ and ‘band’ are used

' almost interchangeably. The be es — as =e,

tans ies an independence —

narily used pre-supposes or

of any other sovereign power more or less absolute,

an organized government, recognized officials, a Sys-

tem of laws, definite boundaries, and the power to, .

enter into negotiations with other nations. These

characteristics the Indians have possessed only in a

. limited degree, and when used in connection with

_ the Indians, especially in their original .state, we

must apply to the word ‘nation’ a definition which in- -

dicates little more than a large tribe or a group of af-

filiated tribes possessing a common government, lan-

guage, or racial origin, and acting, for the time being,

° i ee ae

PRED oD OED - = situs «

-

.

in concert. Owing to the natural infirmities of the

Indian character, their fiery tempers, imipatience of -

* . restraint, their mutual jealousies and-animosities, their ~

. > homadic habits, and*lack of mental training, they

A220

. have as a rule shown a total want of that cohesive

. force necessary to the making up. of a nation in the

ordinary sense of the word. As. they had no estab- ..

lished. laws, no recognized method of choosing their

. sovereigns by inheritance or election, no officers with

defined powers, their governments in their original

\. State were nothing more than a temporary submis-

-\. sion to an intellectual or physical superior, who in

‘some cases ruled

Others, was reco

to dominate the

only so long as he was able

ibe by the qualities which origi-

nally enabled to secure their leadership. In short,

the word ‘nation’ as-applied to, the, uncivilized In-

dians is sO\~much} of a misnomer as to be little more

»”

than a compliment.

The Puyallup tribe “Glearly does not qualify as a “na-

' tion” as pointed. out by the court’ in that»case, and this

argument about the tribe being a sovereign nation is

without merit. ~

“The ‘case of Oklahoma Tax Com. v. United States, 87

L.Ed, 1612 (1943) involves the right of the state to im-

' pose inheritance taxes on the estate of deceased Indians.

~ The court held that although there are remnants of the

form of tribal Sovereignty, these Indians ‘have no effec-

tive tribal autonomy. They are actually citizens of the

‘state with little to distinguish them from all other citizens.

, _ These Indians as well as the Puyallups, have a state

that supplies.for them and their children schools, roads,

_ courts, police protection and all the other benefits of an

* ordered — Indeed, if need be, they are eligible for

welfare as. well. } .

>

Having accepted the same benefits of other citizens,

by becoming titizens and. no longer being wards of the.

. government, are they also entitled to retain benefits not

‘afforded to other citizens? This court thinks not. By all

c

° :

ith absolute authority, and, in”

&

. .

° 0 wee ere time a

a ee ee en oe .

. =

A-23

the changes over the years, the tribe has lost its identity:

as = apne in’ interest to = treaty, and has accepted

equal footing as citizens wi ‘qpecial privileges not

available toall. ° — . - | ,

| Our own court, in an early case, decided the status of °

individual Indians. State v. Smokalem, 37 Wash. 91°,

(1904). The case arose on the question of whether or not

the: state had jurisdiction in a criminal. case over an In-

‘ dian who committed a crime against the person of an-

other Indian within, an Indian reservation. In this case

. “. «+ In 1883 or“1884 the lands on. this reservation

* were allotted to the Indians in. severalty, except a _ }

» small parcel, .which is still retained by the govern-

" ment and used for school purposes. On March 3, |

-1903, all restrictions against the alienation of these

allotted lands: by the Indians were removed, and

-_ the allotted lands are now ‘held by the Indians by

_ .the same tenure, and with the: same right of aliena-

tion, as are the lands of all other citizens of the state.

For at‘ least five years prior to the commission of this ~ .§

offense, the Indians residing on this reservation main-

tained po tribal relations, had no chiefs or head

men, mhintained no form of Indian government, and.

had neither laws nor customs. They had abandoned f

their tribal relations, so far as lay within their power,

and ‘had .assumed ‘the habits. and customs of the

whites among whom they dwell. The reservation is |

divided into school ‘districts and recincts; some, at fg

least, of the Indian children attend thé public schools ‘ae

‘maintained under the general laws of the state: pre- ,

cinct officers, such as justices of the peace and con-

stables, are elected and ‘perform the duties of their. ce

offices, in their respective precincts. The Indians

are qualified electors of the state, and all their differ--. _, £

ences are submitted to the courts. of the state for

adjudication and decision, having no courts of their

own. There is no agency at the reservation, and the

federal government assumes no jurisdiction whatever

. over the Indians, except in ‘the simple matter of main- .

** >. taining the school above referred to.”

eee oe a= oe Bertha ee es ee

ae

“The case holds that an Indian who has -severed his &%

tribal relations and assumed the habits and custozas of —

the whites, is no longer a member of the tribe.

At page 95, the court said:

. . . eis not to be supposed that Congress in-

tended ;that the remnant of.a band of Indians, like

the Puyallups, without tribal relations, without laws -

or customs, and without a government to administer

them, should be left to prey upon each other and

upon society at large, without restraint or fear of

punishment from any source, unless they should com-

mit one of the felonies enumerated. in this act.”

_ While this case dealt with the status of an individual

only, nevertheless it and the other: case law, together

withthe facts showing the changeover the past 100 years,

leads this.court to the conclusion that there’ is no Puyal-:

lup tribe which succeeds in interest to the rights of the —

original signers of the Treaty of Medicine Creek. _ . .

<<

We turn now to the second question: Is there an exist-

ing reservation of the’ Puyallup tribe, and if so; what-are

its- boundaries? '

At page 17 of the brief of the defendant Satiacum, it

is asserted that the Puyallup Indian tribéyowns the tide-

lands abutting on, or appurtenant to their original reser-

vation established by treaty and executive order to “ex-

treme low water.” Indeed, it is probably necessary for

the defendants to make this assertion, or otherwise they

would be trespassing in their pursuit of ‘their fishing ac-

tivities.. . a!

But what about the owners of the lands along the

shores of Commencement Bay, and the banks of the Puyal-

lup River? Are the homes, factories, mills, warehouses,

parks, et cetera, et cetera, encroaching on the, property

of the Indians?

The reservation established for the Puyallup Indians

covers an area from Pt. Defiance along Commencement

Bay, up the Puyallup: River. for several miles, across it

_ and then along the north side of it, aid Commencemen

Bay to Brown’s Point (PI's Ex. 12; Def’s Ex. “00”).

Hee ey AL25

Article 6 of the Treaty of Medicine’ Creek provides:

as he may deem fit, on remuneratin them for their

Their removal, or

may consolidate them with other friendly tribes or

bands. And .he may further, at his discretion, cause

the whole or any portion of the -lands hereby re-

served, or of such other land as may be selected in

lieu thereof, to be surveyed into lots, and assign the

same to such individuals or families as are willi

avail themselves of the privilege, and will locate on

_ the same as a permanent home, on the same terms

and subject to the same regulations as are pro-

vided in the sixth article of the treaty with the Oma-

has, so far as the same may be applicable. Any sub-

stantial improvements heretofore made y any Indian,

and which he ‘shall be com elled fo abandon in

consequence of this treaty, shall be valued under

the direction of the President, and payment be made

accordingly therefor.” oe |

In 1887, Congress passed: the General Allotment a

(24 Stat. 388), authorizing the division of reservatéon

land among individual Indians with a view towards even-

tual assimilation into our society. :

In 1893, Congress passed the Puyallup Allotment Act

(27 Stat. wy which established a commission to - allot

the lands of the reservation to the Indians in severalty,

and set up a ten-year trust: period from the date of pas-

Sage of the act (March 3, 1893) during which. time the,

allottees would: not have the power to alienate their in-

dividual tracts. . ;

Some question having been raised as to title when sales

were made under this act, Congress in 1904 passed the

so-called Cushman Act (33 Stat. 565 ). This act pro-

. Vides as follows: .

>

>

“Be it enacted by the Senate and House of Repre-

-

; ‘ | (A26, |

sentatives of the United States of America in Con-

‘gress assembled, That the Act of Congress approved

March third, eighteen hundred and_ninety-three

(Twenty-seven Statutes, page six hundred and

_ thirty-threé),. authorizing the sale of the Puyallup

allotted lands, with restriction upon alienation ‘for

. a period of ten years from the date of the passage’ —

thereof, shall be taken and construed as having ex-

pressed the consent of the United States to the re-.

moval of restriction upon their sale by said Puy-

_allup Indians to their allotted lands from and after

the expirction’-of said period shall be given effect

of having been made without any restrictions upon

the power of the allottee to alienate his land.

“Approved, April 28, 1904.” .

The law seems to be clear, that a reservation cannot

_ be changed or done away with, except by an Act of Con-

_ §ress. The question, therefore, seems to-be whether or

' not the acts of Congress referred to, did, in fact, do away

with the reservation when sales were made by Indian

allottees. Ts oy

¢

Mr. Louis J. Burkey, an officer of, and attorney for

the Tacoma Title‘ Company, testified concerning a reser-

vation and stated that reference is always made to the

fact that certain land.is within the Puyallup Indian Reser-

vation and that he knew of no act.which removed the

. existing boundary lines of the reservation. It appears to

the court, that his testimony merely indicates that’ refer-

encé to the reservation .is made simply as a geographical

_*

reference point. |

He further testified that in conveyances covering lands

within the original reservation ‘boundaries, there are no

restrictions or references. to any fishing rights. In other

- words, title is free from any claim of any Indian as to

fishing rights, ownership of tidelands, access rights, or

any other claim that could be’ asserted, based upon the

‘Medicine Creek Treaty. = .

An early case of United States v. Celestine,-54 L.Ed.

195 (1909), is relied upon. by defendants. This was aj.

> -

eda Tee

. ee

. se essen ont

Liean ABH ag

ae oe,

criminal case in which the crime was committed on the

- Tulalip Indian Reservation. 3

Although a patent had been issued, the tacts Ypmpdfned

_ within the reservation. The court said:

“When Congress has once established a reserva-_

tion, all tracts included within it remain a part of the

reservation until separated’ therefrom by. Congress.”

_ However, the treaty with the Tulalip Indians provided

for only a\ conditional alienation of the lands, -making

it clear that the special jurisdiction of the United States

had not:been taken away. dp

The case holds that the right secured to the Indians

could not be extinguished by the United States or the

state in granting patents. to land, but says nothing of ef-

fect of allotments aid sales by Indians, . Spee

An ezarly case dealing directly with the uestion of

whether ‘the reservation had. been abolishe by _allot-

ment and sale is United States v. Kopp, 110 Fed. 160

- (1901), referred to earlier ; this opinion. In that case

Judge. Hanford dismissed a charge - against Kopp for ;

Selling liquor toa Puyallup Indian. He held that the. .

United States ha@hot proved the vendor to be a Puyallup ;

_ Indian. The judge said: ak 3 -

“Since the decision of the Circuit Court of Appeals

_ that case (Eell v. Ross, 64 Fed. 417), the conditions

- have been materially. changed by actual sales of a

‘considerable part of the reservation under the provi-

sions of the Act of 1893 above referred to. It is cer-

tain that the purchasers from the commissioners ap-

pointed pursuant to that statute cgnnot be la y

evicted nas their property, and ‘I’ hold that by the

wisi alienation of a considerable part. of

_ the patented land the reservation has been abolished,

except the part retained as a site for * Indian train-

ing school, and use of the govertiment for other pur-

poses.” (Emphasis supplied)

The same judge in the case of United States v. Ashton,

170 Fed. 509 (1909), a quiet title action, said: sae

, Every one of those patents extinguished all the.

rights of the tribe as a community with respect to

the tract of land conveyed by it. The fishing rights -

secured to the Indians by the treaty, were by its ex- .

press declaration a mert privilege to be enjoyed in

common with all citizens and logically antagonistic

_ to any claim of an exclusivé or adverse right and en °:

tirely lacking in all of the essentials of a grant of _

an inheritable estate.”

"By this case, title to the tidelands ‘was quieted in de-

PM: Hi as against any claims of the Indians. |

A very recent case is thatof Klamath & Modoc Tribes v.

Maison, 338 F.2d 620 (1964), construing a Termination

- Act of Congress providing for the termination of Federal

supervision over the trust and restricted property of the

Klamath Tribe* of Indians. The case is important as to

the extent of termination of Indians’ rights upon termina-

tion of a reservation. The court said: .

_ “We agree that the Termination Act has not ex-

pressly dealt with any treaty rights respecting: hunt-

._ ing and trapping. It has, however most certainly re-

duced the area to which these rights attach. By treaty

the rights of the Indians were: limited to the lands

of the reservation. By the Klamath Termination Act,

supra, ‘it- was provided that to the extent necessary

_ to meet the requiréments~of the Act, lands should

_ be taken from Indian ownership and sold. Such lands

clearly were thereby severed from the reservation

and thus released from any restrictions imposed upon

them as reservation lands by the treaty.” (Empha-

sis supplied) .

. °. To the same effect is State v. Sanapaw, 21 Wis.2d 377,

¢ 124N.W.2d 41 (1963). The intent. of Congress as to the

/

: - A-29

"status of Indians is evidenced by House Concurrent Reso-

_ lution 108, 83rd session, which states in part: -

“Whereas it is the policy-of Congress. as rapidly

as possible, to make the Indians within the territorial

limits of the United States subject to the same laws .

.. and entitled to the same privileges and responsibili- -

ties as are applicable to other citizens of the United

States, and: to grant them all of the rights and pre-

. °. Yogatives pertaining to American citizenship; pty if

*."« “Whereas, the Indians within the territorial limits

of the United States should assume their full respon-

sibilities as American citizens:...” - — a

What is a reservation? It has been defined in the case

of United States v. McGowan, 82. L.Ed. 410 as ‘follows:

_ An Indian reservation consists of land validly set

~ apart for the use of Indians, under the superinten- eel

og the Government, which retains title to the :

ands.” - |

In the case at bar, tHere is neither superintendence or

retained title as to the alienated lands. :

, Our own court has considered this question ‘in State v.

‘ aaa 50 Wn.2d 513. In that case Judge Donworth ~ =

- “Said: ~ nF , ay.

. “We are constrained to hold that alienation of

the land which was, and is, within the original Puy-

allup reservation, and which borders upon the Puy- _

allup river, does not alter the character of the right

of the Indians. to fish upon the river within the ex-

terior boundaries of the original Puyallup Indian _— j

reservation, in -view of the decision ‘in the Pioneer i

. Packing Co. case.” _ . (*

Defendants say that this is a res judicata of the ques-

tion, and if this were so, this court would feel it was.

bound by this opinion. However, Judge Hill, in that case .

said that there is no majority opinion. He went on to say:

“,. . nothing is decided except that the order dis- _

missing the charges - against the defendants .is af-

r firmed.” es

ty

their lives in the ocean and, just before

__the place of their birth to spawn. « -

"supra:

A-30

; This court therefore takes the. position that it is not bound

by Judge Donworth’s statement. It is the opinion of this

court that the Puyallup Allotment Act of 1893 (27 Stat.

633) and the Cushman Act of 1904 (33 Stat. 565) in ef- -

fect abolished the reservation and any fishing rights at-

‘tached thereto as to any land sold subsequent to the allot-

ment to individual Indians.

By these Acts, Congress evidenced, by the only means

possible, its intent to abolish the Puyallup reservation -

through alienation. -All the lands within the original

holeilasies of the reservation which have been sold

are, therefore, no longer/a part of the reservation, and all |

fishing rights claimed as being appurtenant to those lands -

have been abolished. ,

Turning now to the third question:

Are the regulations sought to be enforced by the. state

reasonably necessary, for the conservation of fish? . -

a

_ At the outset, the. court recognizes that there is a line

of cases requiring the state to show that the regulations

are “indispensable” in the conservation of fish, and this

will be touched on later. ‘

In this case we are dealing with salmon and steelhead

fish which are known as anadromous fish. Anadromous

fish may generally be defined as fish that are born in fresh

water streams, migrate to and live the “Prcater part of |

ying, return to

_ At the time of the Medicine Creek Treaty, in 1854,

the Puyallup. Indians were fish and shellfish eaters, and

depended . eat on them for their subsistence. This

was their only need for the fish except for a minor amount —

of bartering. It is safe to say that present conditions weng_ .

not contemplated when the treaty was negotiated ant”

signed. As Judge Rosellini said in State v. Satiacum,

“Inherent in the treaty. is the implied provision

that neither of the contracting parties would destroy

the very right and bounty which each ought to share.”

A-31 _

While’ Indians apparently were.fishing in the manner

sought here to be.enjoined, in the years followin 1934, |

it was not until 1953 that any difficulty arose. This was

due ‘to the fact that much of the fishing was done at night, .

and it was riot until about 1953. that a regulation re-

quired: fish buyers to report their purchases as to loca-

tions and from: whom purchased, thus bringing their com-

_mercial sales to the attention of the state.

Fishing was done at night prior. to the introduction of

monofilament nets which are ractically invisible in the

water and snare the fish by the gills as they swim into

them on their way up the river. Nets used prior to the.

introduction of this-material were -visible to the. fish and

they tended to avoid them, thus making night fishing

more effective. ©

"Much evidence was introduced by fish and game pro- ‘a

tectors, and by fisheries experts: of ‘both Washington and so

Oregon concerning the manner of fishing practiced by a

- ‘the Indians and the need far regulation of fishing. | i

The waters of Commencement Bay and the Puyallu :

River aré part of the Puyallup Preserve. No commerci a

fishing is allowed, and sport fishing is, by~xegulation, re

confined to hook and line. Evidence shows that the In-

dians-use set nets near the mouth of the Puyallup in Com-

_ encement Bay and,in the river itself. These nets are as -

long as over 100 feet_and deep a to practically | 4

_ touch bottom. They are fastened ‘to fixed objects, such as ~

_ pilings or bridge abutments, and are tended from time |

_ to time by being lifted out of the water, and the fish re-

moved. Other nets used in the Puyallup River are drift - ,

nets that extend from one side of the river to the other,”

and are allowed to drift downstream, snaring fish in their 7

webbing as they go. The fish caught are used personally, a

but a large number are sold- commercially. Tee

The complairit of the state is that this method of fishing_ ir

is against state regulations and has the effect of depleting

or ruining the salmon runs. ‘ :

As has been’ pointed out, originally. the Indians only

‘took enough fish for personal use and barter, which. was’

inconsequential compared to the present demand for fish.

In order to maintain the run of fish, it is necessary to

keep a proper balance of réturning fish to the spawning ~~

grounds.. Evidence indicated. that there have—béen less.

and less returning fish from 1952 to 1964. The return

’’ went up sharply in 1964 because net fishing was curtailed

at the mouth of the Puyallup River by a court injunction.

The evidence indicates, however, that the Indian catch

of salmon and steelhead is only’ about 3 to.5 per cent

‘of the tetal. -

It is argued by the defendants, that commercial and

‘sport fishing should be curtailed more, and that pollution

in the streams, dams and dredging f the river, et cetera,

. cause the. killing and depletion of fish ruris, and not In-

dian fishing. The state argues, however, that all segments

of the fishery must be regulated, and that pollution, dams,

' et cetera, are also regulated and taken\ into consideration

in the ovér-all conservation program. =

. Fish swimming freely in-the waters are not owned by

anyone. Title is obtained when possession is obtained. We

are here dealing, however, with a natural resource made:

available through the rivers and streams, and the right

to regulate the fishing thus made available, and of thereby

obtaining title to or ownership of the fish. .

If the state has the right to regulate, the courts have

adopted different rules as to what regulations may be

sigh inorder to preserve fish runs. Makah Indian

T

e v. Schoettler, 192 F.2d‘ 224 (1951).

The defendants rely upon the case of Maisori o Umaiil-

~ la, 314 F.2d 169 (1963), and contend that this court

__ should adopt that rule. That case held that it is necessarye

for the state to show that the regulation sought to be

- imposed is “indispensable” to the accontplishment of the

~

“A

“ao

needed limitation. This court rejects-this rule as being too |

strict, and imposes a burden:on the state which is impos-

sible to meet.

The case of Tulee v. Washington, 86 L.Ed. 1115

(1942) was one where Tuleé was charged with fishing

without a license. It was. held that the state has power -

to regulate the. manner of fishing to conserve fish, but

-. sport fishing in Commencement Ba

* A-33 . .

can’t charge a license fee. This case is also authority for

the proposition that the treaty did not give the Indians

“nA right to fish unrestricted and free of any state regu-

a Fs | 3 |

The conclusive case on this question so far as the state

of Washington is concerned, is State- v. McCoy, 63 Wn.

2d 421- (1963). Here, the defendant was fishing in much

the same manner as were the defendants in the case at

’ bar. At page 427, the court said: © | fs

“One essential of a conservation pro is the

regulation of the harvest of salmon in salt and fresh

water areas. It is regulation that providés the es-

capement necessary to maintain'a perpetual supply

of salmon for the harvest by all people. If a fishery,

within a river or off its mouth, harvests too many

of the adult salmon because of the shallow’ confined

\nature of the fishing area.and the habits of the

salmon which cause them to school up and dela

in these areas prior to ascending the river, there will

' be little escapement to perpetuate the runs. An un-

©

controlled fishery in such areas may harvest almost

‘the entire’run of a fishery resource. Salmon are not

inexhaustible and without their proper escapement

for reproduction from year to year through controls

’ in the harvest; the stocks will be reduced to.a point

where only a remnant run will exist.” |

ae ie ee 7 : |

.. This language<applies with equal: force to the situation

sought to be Peilatee in the case at bar. The case holds

that the state has the power and the right to subject In-

dians to redsonable and necessary regulations | for the

protection of the fishing resource.

: Without reviewing the evidence in this case, it is clear

‘to the court that a large number of: fish must survive .~

back to spawning: grounds regardless of pollution, pred-

ators, logging, dams, et cetera, and Tidien net fishing

_ prevents such survival. It is necessary to prohibit all. non-

: ay and the Puyallup

River. in order to conserve the fish: While there no/doubt

:, is pollution and other man-made ‘activities on the river -

~ that do adversely affect the fish, these in themselves

Rin cence. 4-00 Sige ene tee ata Geary ow OT tm Se wn SRI i NUNS. tem cistere mee obsess ab dich eplalbok eS ee bd

. “ . Pees.

A-34

are not lethal, and any regulations covering any phase of §

fish protection are in yain. unless the state also pov fi

fishing in Commencement Bay and the Puyallup River.

Indians’ unregulated gill net fishery in the Puyallup

River has caused serious damage ‘to the fish runs indige-

nous to that stream, and will, if permitted to ‘continue,

cause irreparable harm in ‘that the fishery resource will

be unable to sustain itself, in accordance with the basic

principles of conservation. It. follows that the regulations

~ sought to. be imposed by the state prohibiting’ net fishing

in Commencement Bay and the Puyallup River are rea-

sonably necessary for the apteieanan of salmon and .

steelhead fish.

“From the. answers to the questions in this | case, o

court concludes that the defendants are not entitled to

any privileges or immunities from the application of state

conservation measutes, and that 2 permanent injunction

may issue enjoining the. defendants from netting qnadro-

mous fish in Commencement Bay, the Puyallup River,

or any of its tributaries.

Dartep at Tacoma, ‘Washington, this 27 th day of May,

1965. ~ —_

Joun D. Cocuran, Judge

WASHINGTON STATE SUPREME COURT DECISION |

[No. 38611. En Banc. January 12, 1967. }.

THE DEPARTMENT OF Gani et al. _ Respondents, v. *

_ Tue Puyauiur Tris, Inc., et al., Appellants.”

(1) Judgment—Declaratory ohipestnn—digiptapwiane

Controversies—Interpretation of Treaty Rights.

An action for a declaratory judgment under R.C.W. _

7.24 was a proper method for certain state agencies"

to obtain a. determination of whether certain In-

‘ dians were immune from state fishing regulations by ..

virtue of treaties between the United States. and

various Indian tribes, where the alternative method

of obtaining relief would be a multiplicity of arrests

for violation of the fishing. re age \and the jail-

oe and _— of in uals for considerable

/

x

»

7

(2)

(3)

| RO |

periods of time with consequent hardship to them

and their families. vee |

States — ‘Indians — Treaties — Repudiation.

The courts of this state do not have the power to re-

pudiate and nullify treaties between Indian -tribes

and the United States. et

Same — Indians — Termination of Tribe. The

Courts of this state do not have jurisdiction to make

a judicial determination of the termination of exist- ,

ence of an Indian tribe, but such a tribe continues

. to exist so long as it is recognized as such by ap-

(4)

(9)

_ propriate agencies of the United States or until Con-

gress passes a termination act. c

Fish — Indians — Off-reservation Fishing —

Disposal of Reservation. The rights of individual .

Indians, under the Treaty of Medicine. Creek, to

fish at usual and accustomed grounds and stations,

is not dependent. upon any rights in reservation

-lands, and the off-reservation fishing rights are un-

impaired by the fact that reservation lands have,

pursuant to act of Congress, passed into fee simple

private ownership.

‘

Same —. Indians — Off-reservation Fishing —

Regulation by State. Indian treaty rights to fish at

all usual ‘and accustomed grounds and stations do |

not extend to permit fishing in such a manner as

would destroy the fishery, but-leave the states with

power to impose such regulatory restrictions as are |

necessary for the consetvation of fish. When a per-

SOI we with violation of state conservation reg-

ulations established that he is a’‘member of an

. Indian tribe having a treaty right to fish at all “usual

and accustomed grounds and stations,” the burden

is upon the state td show that its regulations are

7 reasonable and necessary to conserve the fishery.

(6)

Same —Indians — Off-reservation Fishing —

State Conservation Rules — Validity. Insofar as

Indiah treaty rights to fish at all usual and accus-

tomed grounds and stations are concerned, the test

ry A-36 ;

to be appled in passing upon the propriety and

validity of state regulatory restrictions is not whether

they are “indispensable” to the preservation and

. protection of the fishery involved, but whether they

aye “reasonable and necessary” for that purpose, .

. Hunter, Hae, and ROSELLINI, JJ., dissent.

Donwortn, J., dissents in part. :

_ Appeal from a judgment of the Superior Court for

“Pierce County,’ No. 158069, John D. Cochran, J., entered.

August 13, 1965. Reversed in part.

_ Action for a declaratory judgment. Defendants appeal

from a judgment in favor of the plaintiffs.

Arthur R. Knodel and Malcolm S. McLeod for appel-

lants.

-y The Attorney General and Joseph L. Coniff, Assistant,

for respondents. eS \

Hu, J——The Department of’ Game of the State of

Washington and the Départment of Fisheries-of the State

- of Washington, hereinafter called the Departments,

brought this declayatory judgment action! for the purpose

of determining whether certain named individuals had,

as members of the Rayallup Indian Tribe, any privileges

or immunities fromthe application of state conservation

measures. :

The defendants asserted rights under Article 3 of the

Treaty of Medicine Creek (10 Stat. T132) between the

United States and various Indian tribes including the Puy-

allups. This treaty was signed December 26, 1854; rati- |

tied by the United -States Seriate March 3, 1855, and

proclaimed by the President of the United States April

10, 1855. This treaty was the first of a group of 11

treaties negotiated with the Indian Tribes of the Pacific —

1. The case caption is erroneous, there being no entity known as “The

Puyallup Tribe, Inc.,»a corporation.” The Puyallup Tribe of Indians did

_ appear and answer by and through the chairman of the Tribal Council.

a

»

. N ™ " Spang telpemattne Nance Sale RR amie ole ow eat te lane een ended oe agen

Se cee ee AD Dees ee Ne Patines wat octet oad . “ ~ ma » .

. «

A-37

*

» Northwest between : December 26, 1854 and July 16,

By the treaty, oY Indians ceded, reli uished

. and conveyed to, the United States. “all their righ title,

The right of taking fish, at all usual and accus-

tomed grounds and Stations, is further secufed to

said Indians, in common with al] citizens of the Terri-

tory,!2] and of erecting tem: porary houses for the pur-

Pose of curing, together with the privilege of hunting, .

_ gathering roots berries, and pasturing: their |

horses on open and unclaimed lands: P

hew-

ever, That they shall not take shell fish from any

beds staked or cultivated by citizens, and that the

shall alter all stallions not intended for breeding

‘horses, and shall keep up and confine the latter.

: 2 ; : .

The trial court concluded that ‘the Puyallup Tribe no

longer existed as an entity and that its members no longer

had any _ under the treaty; that there was no longer |

u

any Pu

Puyallup In

€ reservation; and. that

p Indian Reservation and, hence, that

It is reasonable and necessary that state conserva-

‘code tion, rules and regulations be uniformly applied to

’ all citizens on an equal basis, (Finding No. 4).

er in any manner contrary. to the-laws of the State

of Washington, or contrary to the rules and regulations

served to the Indians the-right to take fish exclusively in the reservations

and at all usual and accustomed places (Or, as in the treaty with which

Neary here concerned, “at all usual and accustomed grounds and sta

tions”), in common with citizens of the Territory, or variably in common

with\ citizens of the United States. ~ . . .

ians had no fishing rights within what had ©

ate Caettaed

Bile i oe oar a ee

. A-38

From that judgment, the. Puyallup Indian Tribal Coun-

cil appeals. : _ | |

_ It is first urged that the state Departments are not en-

titled to seek relief under the Uniform Declarato Judg-

ments Act (R.C.W. 7.24.010 et seq.). Basically, the con-

tention is that the issues here’ before us for determination

should be raised in individual criminal actions brought

_ against Indians who violate’the food fish and game fish

conservation laws found in Titles 75 and 77 R.C.W., or

the regulations promulgated thereunder.

- [1] A multiplicity of arrests for violation of fishing regu-

' lations, which involve the jailing and detention for con-

siderable periods of individuals and consequent hardship

to them and their families, seems to us the unnecessarily’

hard way, of determining whether they. have immunity -

from certain fishing iodides. ee

Since the Indians who claim immunity from these regu-

lations claim them under treaties between_the United

States. and various Indian tribes, it seems to us that the .

state Departments acted wisely in seeking an interpreta-

tion of those treaties and a delineation of the rights of the

_ members of the different tribes in a series of actions under

the Uniforni Declaratory Judgments ‘Act. |

On the merits, both .parties* assume an extreme and

adamant position. . :

| The Departments take the position that ‘the Indians

never had, as against the. United States, any right ta the

“use and occupancy” of any land; that the 7 were and are

a conquered people without right or title to anything, | °

Having nothing to cede, there wag.no consideration for

any promises made to them, and there is no necessity to -

respect: those promises even though they were labeled —

“treaties.” aan 7 "

{2] Our answer is that regardless of whether treaties

with Indian tribes were necessary, they were deemed de-

3. A much more detailed and completely devastating answer is given’

- by the Supreme Court of the United ‘States in United States v. Alcea

Band of Tillamooks, 329 US. 40, 55, 91 L.Ed. 29, 67 Sup. Ct. 167

(1946). Even the dissent in that case, while disagreeing with the view

vo es | AL39 |

_‘sirable by the United States and those entered into by it

cannot be repudiated by this state or its courts. oy}

The case of Tee-Hit-Ton Indians v. United’ States, 348.

* U.S. 272, 278, 99 L.Ed. 314, 317, 75 Sup. Ct. 318, 314

955); on which the Departments: rely, points out

_ Specifically that there wer®.no treaty rights involved and. ©

Says:

This is not a case that is connected with any phase

of the policy of the Congress, continued throughout

istory, to-extinguish Indian title through’ negoti-

ation’ rather than by force. . .

ie .

_ Nor jis there anything in Vi e of Kake v. Egan, 369

U.S. 60, 72, 7 L.Fd.9d 573, mii 82 Sup. Ct. 562, 569

(1962), also relied upon by the Departments, which con:

tains any suggestion. that the. United States is now about —

to allow a state to repudiate any treaty which the United

States has made. The opinion does point out that, |

In 1871 the power to make treaties with Indian

a was abolished; 16 Stat. 544, 566, 25 U.S.C.

th.

and that theré were no treaties with Alaska: Indians. It

should also have pointed out that the same enactment

provided that “no obligation of any treaty lawfully made

and. ratified” with an Indian tribe prior to March 3, 1871, §

was “invalidated or impaired.” The opinion does not di-

rectly or by inference im ly. that the United States was-

_ just playing “Treaty” with the Indians when the Senate

ratified. a e President proclaimed the treaty here in

of the majori opinion as to Indian ri and title in the igi 1

lands Sien Gee te been: no prior sh ition by the ined een

. _ We commend, too, as an .answer to the “hard-boiled” argument of the

Departments, the article on “Original Indian Title” in “The Legal Con-

science,” a volume of the selected papers of Felix S$. Cohen ( pp. 273-

303), in which he peints out that the Tillamooks casé, supra,

“. + « gives the final: coup de grace to what has been called the

‘menagerie’ theory of Indian title, the theory that Indians are less than

human and that their relation to their lands is not the human relation

bear to the areas in which they may be temporarily confined. - ..” P re

"a

Nee RA A te HE Nii weet Gilet Ara has Vie

A-40

. question. It was not the Indians, but the United States

and the white settlers in the Territory of Washington who

were asking for this and other treaties in 1854 and 1855.

The Departments further urge that if the Puyallup In

dians ever had any fishing tights as such, their rights in

the ‘reservation area-long ago ceased to exist: that the

‘ members of the Puyallup Tribe are ‘all citizens of the

United States and of the State of Washington and have

he rights different from: any other citizen.

The defendants, on the other hand, urge that they have.

rights under the Medicine Creek Treaty to fish on the

_ reservation and at other “usual and. accustomed grounds :

and stations” at any time and with any type of gear they |

choose .and that. they do not have to comply with any

‘regulation, or if they have to recognize any regulation it

must be “indispensable” to the preservation of the fishery.

(This last position is posited on Maison v. Confederated

Tribes of the Umatilla Indian Reservation, 314. R2d 169

(9th =) 1963), which will be discussed later in this

opini@h. ). .

_ The observation of Mr. Justice Black in Tulee v. Wash-

ington, 315 U.S. 681, 684, 86 L.Ed. 1115, 1119, 68 Sup.

Ct. 862, 864 (1941), is still apropos:

; ,

We think the state's construction of the treaty is

too narrow and the ‘appellant’s too broad; . . .

The members of the tribes signatory to the various

treaties do have certain special fishing rights thereunder,

notwithstanding the contention of the state. And the

members of such tribes are subject at least to regulations

which are nécessary for the preservation of the fishery,

notwithstanding their contentions to the contrary.

We will now consider-whether the trial court erred in

reaching the .conclusion: eek :

. _. There is‘ no ‘presently existing. Puyallup Tribe of

‘Indians which stcteeds. in interest to. the orjginal -

Puyallup Mdian Tribe which was signatory to the

Treaty of Medicine Creek (Conclusion of Law No. 1).

“ A-41 : . " te

To support this conclusion, the trial court made find-

ings Nos. 10 and 11. | a

While some of the defendants have participa

in the affairs of a federally organized. group known

as the “Puyallup Tribe,” this organization is in es-. :

sence no different than the Italian-American Club or

the Sons and Daughters of Norway, or like social

' Groups. Over the years, the defendants have blended

themselves into the dominant Western-European so-

ciety to stch an extent that they are indistinguishable

from all other citizens of this State extept for the

fact that in some instances individuals may be able

to trace their blood line ancestry to a member of the -

aboriginal tribe of Puyallup Indians. The activities

the disposition of certain trust remaining on -¢@

- deposit for their benefit in the Treasury of the United - ale)

States and the present assertion of their claimed im- ae. &

munities from state. conservation measures.

The federal organization known as the “Puyallup

Tribe” maintains no courts, has no policemen, and oc-

cupies no given land area. In fact, the lands over

which the defendants assert ‘exclusive jurisdiction

now comprise an integral part of the City of Tacoma:

(Finding No. 10). .

i a a ih aa 4

tame appear on the roll. The 1929-roll was prepared ~- . |

for the purpose of distributing certain funds resultin mE

from the sale of the few remaining trust lands sti ~ §

held for the benefit of the aboriginal Puyallup Tribe

of Indians by the. United States Government. This

roll is now out of date, and although somie efforts

ve been made‘ to make ‘it current, these efforts

have not yet been successful. This court is unable to

determine who is, or is not, a member of-the federal

“_™

LL ee nr reer

.

*

ee a oe ae, See neuen)

OO

on . * ew

< = . - a — + Clee cries ae i eee ——

(fea Se ee RRR i aR a oe gu te tT EM CR on Cx — Se esl >

.

organization known as the “Puyallup Tribe”. at this

time (Finding No. 11). - }

- [3] We are satisfied that so long as the United a

government, through its appropriate agencies; continues

to recognize the existence of the Puyallup Tribe of Indians

and its tribal roll, as they clearly do, the Superior Court

for Pierce County acted without jurisdiction in making a

judicial determination of the tribe’s termination.

Historically and uniformally-the termination of federal

supervision of an Indian tribe has been accomplished by

the Congress through enactment of legislation.4 And

even the Supreme Court of the United States defers to

the executive and other political departments of govern-

ment “whose more special duty it is to determine such

affairs” stating that “If by them those Indians -are recog- -

‘ “nized as a tribe, this court must do the same.” (United

States v. Sandoval, 231 U.S. 28, 47, 58 L.Ed. 107, 114,

_ 34 Sup. Ct. 1, 6.(1913) ).

The trial court's “Memorandum Decision” is a very able

and scholarly document, and while we have disagreed on

this phase of the case, we are persuaded by’its presenta-

tion that the time is long past when there should be a

supercitizenship:on the part of those proudly claiming

Puyallup-tribe ancestry which entitles them to disobey

‘laws and regulations imposed for the conservation of a

great natural resource, which all other citizens must obey.

However,: it -is a supercitizenship conferred by. treaty,

and only the United States can remove the discrimination.

The trial court also found: .

All of the lands within the exterior boundaries _

of the old Puyallup Indian Reservation were sold; in

fee simple absolute, pursuant to. an att of Congress

(33 Stat. 565) with the exception of two small —

4. For examples of such legislation see: Termination of the Klamath

Tribe, 25 U.S.C.A. § 564; Termination of Wyandotte Tribe of Oklahoma,

. 25 U.S.C.A. §§ 791-807; Termination of the Peoria Tribe of Oklahoma,

. 25 U.S.C.A. §§ 821-826; Termination of the Ottawa Tribe of Oklahoma,

25 U.S.C.A. §§ 841-853; Termination of Menominee Tribe of Wisconsin,

25 U.S.C.A. §§ 891-902; and Termination of the Ponca Tribe of Ne-

braska, 25 U.S.C.A. §§ 971-980. -.

.

=

Dae Neti Sears ates

ae a

— a oe

tracts which are presently bein utilized asa ceme-

tery for members of the deel organization known

as the “Puyallup Tribe.” The total acreage remaini

in trust status is approximately 22 acres. The origi

; i was in excess of .18,000 acres. (Finding

No. 12 | <li

- The evidence supports this finding, and it is clear that

though the Puyallup Tribe continues to exist, the entire

reservation, except for the sthall tract to which reference

was made, has passed into fee simple private ownership,

consequent to congressional action, ma

longer a reservation.

Some questions having arisen concérning the power of

the Indian allottees to convey complete fee simple title to

their allotted lands, Congress ‘confirmed: the removal of

the trust restrictions against alienation of the allotted

lands. 33 Stat. 565 (1904). -

Be it enacted by the Senate and House of Repre- -

sentatives of the United States of America in Con-

_ 8ress assembled, That the Act of Con ess approved

“March third, eighteen hundred and ninety-three

( Twenty-seventh Statutes, page six bandied and

irty-three ) , authorizing the) sale of the Puyallup

allotted lands, with restriction —— alienation “for a

i a

period of ten’ years from the b

thereof, shall. be taken and construed as having ex-

expiration of said period shal] be given effect of .

having been made without any. restrictions upon the

power of the allottee to alienate his land. °

gs evidence of congressional intent is shown

by the House Committee’s Report on this bill: ne

9.

that’ there is no

Se

ee ass a ND i ety iat Rib Mice 2 OR eee -

Ba feo ieeied

- A-44

- as any other person may sell and convey ‘real estate,

(H.R. Rep. No. 301, 58th Cong,, 2d Sess. (190+) ) » |

Attached to th@ report, as an exhibit, was a letter from Ny

the Commissioner of Indian Affairs expressing the view -

that, : | os

Should it become a law, it would certainly be

clear to all concerned that the Government thereby

gives its absolute, full, and complete consent to the

removal of the restrictions mentioned.

There can be no question but that the legislation, as en- °-

acted, carried qut the legislative intent. — tee oh

Whether the land within the reservation remains in the

possession of the original. allottees, or whether it has

_ passed into non-Indian hands, the result is the same, so

far as the tribe is concerned: It has no legal interest in -

it. All of the land may be taxed ‘by-the state (except pos-

‘sibly- the small tract: reserved for cemetery purposes).

' Goudy v. Meath, 38 Wash. 126, 80 Pac. 295 (1905).

_ [4] While.reservation lands are allotted and sold

pursuant to.an Act of. Congress removing 2 mre

upon alienation, there is no impliéd reservation of hunting

-and fishing rights. United States.ex rel. Marks v. Brooks, .

32 F. supp. 422 (1940), citing Pennock v. Commissioners,

103 :U.S. 44, 48, 26 L.Ed. 367 (1881), and -Spalding v.

Chandler, 160 U.S. 394, 407, 40 L.Ed. 469, 16 Sup. Ct.

360 (1896). rel

The fishing rights of members of the Puyallup Tribe

rest not upon any rights in the reservation lands, iain

._ these have been surrendered pursuant to the congressional

action to which we have salermenl but upon their “right

of taking fish, at all usual and accustomed grounds and ~

Stations, . . . in common with all citizens of the Territory,”

derived from the Medicine Creek ety. We are well .

aware of the statement in United és v. Winans,

198 U.S. 371, 49 L.Ed, 1089, 25 Sup. Ct. 662 (1905)"

quotéd in Seufert Bros. Co. v. United States, 2A9 U.S.

194, 198, 63 L.Ed.: 555, 558, 39 Sup. Ct. 203 (1919): .

-

¢

— Ee TT NO at Se ee ee ees

hd

A-45 *. '

“We will construe a treaty with the Indians as

‘that unlettered people’ understood it, and ‘as justice

and reason demand in all cases where power is ex-

' erted by the strong over those to whom they owe |

care and protecton,. and counterpoise the inequal-

__ ity ‘by the superiour justice which looks only to the

substance of the right without regard to technical

rules.” 119 U.S. 1; 175 U.S. 1.” |

[5] We would protect these treaty rights as readily |

. and effectively as they have been protected in Winans, - _

supra, Seufert Bros. Co., supra, and United States v.

Brookfield Fisheries, 24 F. Supp. 712 (D.C. Ore. 1938),

- but such rights are not absolute; they do not extend to

the right to fish with such gear and at such times as would

destroy the fishery. The United States Supreme Court, in .

é

Tulee v. Washington, supra, said:

[T]he treaty leaves the state with power to im-

_ posé on Indians, equally with others, such -restric-

tions of, a purely regulatory nature concerning the

time and manner of fishing outside the re@rvation ©

_4S are necessary for the conservation of fish, it fore-

Closes the state from -charging the Indians a fee of

‘the kind in question here. (Footnote omitted.) (p.

Consistent with this statement by the Supreme Court,

this court and the Ninth Circuit Court of A s have

passed on the regulations imposed by the artments

‘with an eye to determining whether the re ions con- -

‘cerning the mannér and time of a then in. question

_ Were necessary to the conservation. of’ the fishery and,

hence, could be enforced against Indians whose-rights -

tg fish at their usual and accustomed. grounds and sta-

ions were preserved to them by treaties similar: to the

one before the court in the Tulee case. het

| McCauley v. Makah Indian Tribe, 128 F.2d 867, 870

(9th Cir. 1942), -was tried in the district court before the

decision in Tulee was harided down, but heard in the cir- .

cuit court following that decison. The: district court had. °

' - entered a sweeping injunction against the enforcement

of regulations interfering with the Makah Indians fishing

hei aaedi Sin Se y

~

‘ - ~

std J Ir ape rem esrichnale Miner evan Foe PTT Ry:

ee

oe

”

. comment.. ee a

Se ee | =

in the Hoko River. The case was reversed with the closing

The case seems to have been tried-by both par-

ties on the theory that the Indians had either all fs -

ing rights on.the Hoko River or only those of non-

Indian citizens. It well may be that the Tulee case

has decided all that the parties are seeking to deter-

mine regarding the Makah treaty provision. However,

in reversing it is with permission to the appellees to

amend their complaint and present -the issue of their .

right to such clainied allowable methods of fishing,

specifically described, and* not by such a general |

term as “other Indian fishing gear,” as they. may be

advised.

In Makah Indian Tribe v. Schoettler, 192 F.2d 224, 226

(9th Cir. 1951), again the Makah Indians sought an in-

junction against enforcement of certain regulations, and

the district court dismissed the action; the Makahs ap-

pealed. The circuit court—citing the Tulee case, supra, and

Seufert Bros. Co. v. United States, supra, and United States

v. Winans, supra—summarily disposed of the contention

which is also made here by the Departments, that the In-

dians had no rights against state interference which do not

exist for other citizens. It quoted with approval Tulee,

supra, concerning such restrictions of a purely regulatory

nature relative to the time and manner of fishing outside ~

the reservation as are necessary for the conservation -of

fish and then said: 5

We are not here concerned as we were in Mc-

Cauley’ v. Makah Indian tribe,.9 Cir., 128 F.2d 867,

with any wegen form of regulation. We do not

question the right to enact regulations which will

permit fishing in-the Hoko River to the extent that .

_will give the ‘Makahs their treaty right to fish there

without depletion of the fall run of salmon. We hold

no. more than that the appellee has not sustained its

burden of proof that the instant regulations prevent-

‘ ing the Makahs from the taking of fish in the Hoko

are “necessary for the conservation of fish” in the

fall run of salmon in that river. | rv

La CS See eee wk.

ee + AAT |

The decision of the district court is reversed. and

that court ordered to make and enter an order -re- —

straining the appellee from enforcing such regula- - ~

tions. -

In State v. McCoy, 68 Wn.2d 421, 387 P.2d 942 (1963),

we upheld+a 10-day closure of all fishing on the Skagit

River, designed to: protect the peak of the salmon run

passing through that jiver to the spawning grounds,°.on

the basis that: the regulation was necessary to conserve

_ chinook salmon runs in the Skagit River. In that case, Mc-

Coy, a member of the Swinomish Tribe, was arrested for

fishing near the mouth of the north fork of ‘the Skagit

River. He was operating an 18-foot, 25-hp-outboard-

motor baat and using a 600-foot modern ae gill net.

The superior court found thathe was’ not fishing on the

reservation, but was fishing at “usual and accustomed

- grounds” and acquitted him, holding that his rights under |

the Treaty of Point Elliott (12 Stat. 927; a 22,

1855) gave him immunity to ‘closure regulations. We

reversed the judgment and sent:the. case back for a new

trial, directing that*the court determine whether the

regulation violated was necessary -to conserve the fishery.

‘We agree with the trial court that the rule of the Me-

_ Coy case, supra, is the proper one to be applied where

treaty rights and state conservation regulations are in

apparent conflict. The burden, of proof, once the de-°

_fendant has established that he*is a member, of a tribe

‘

having a treaty right to take fish at all “usual~and ac- ~

customed grounds and stations,” is on the, state to show

that its regulations, which ‘limit Indian fishing rights .

either as.to the time or manner of fishing, are reasonable

and necessary to conserve the fishery.

[6h The United States did not hesitate to adopt reg- . °

ulations it regarded as necessary, to preserve the halibut

fishery. The Makah Tribe suéd to recover damages for

alleged deprivation of the fishing rights reserved to them

under article 4 of their 1855 treaty (12 Stat. 1939) ‘with

5. For a better understanding of the necessity of conservation regula-

‘tions to. conserve the ‘salmon runs, see the opinion in the. McCoy case,

- supra, and Judge Finley’s concurring opinion in State v. Satiacum, 50

— Wn.2d 535, et seq., 314 P.2d 400 et seq. (1957).

.

REN CS

I OOD Gomes ee?

fF ee age

” i Ld

: OW GIO LE HIE TOP EAA PORLO! COT OES BRE ES PIED

alae gr Ray

| A-48

“the United States. The Court of Claims held that the

government's regulations restricting the rights of the Ma-

- Yahs to fish for‘halibut did not amount to a breach of the

~ treaty. Makah Indian Tribe v. United States, 7 Ind. Cl.

Comm. 477 (1959); affirmed: 151 Ct. Cl. Rep. 701

(1960); cert. denied 365 U.S. 879,.6 L. Ed.2d 191, 81

Sup. Ct. 1028 (1961).

The appellants have seized upon certain language in

the recent case of Maison v. Confederated Tribes of the

- Umatilla Indian Reservation, supra,. as establishing the

rule that the particular regulation sought to be imposed

by. the state must be shown to be “indispensable” to the

preservation and protection of the fishery sought to be

regulated before it can be enforced against Indians claim-

=

ing treaty rights to fish at “usual and accustomed grounds

and stations.

, : .— 8

~ ‘The word “indispensable” is taken from Tulee v. Wash-

ington, supra, where the Supreme Court of the United

-- States struck down a requirement for a fishing license as

applied to treaty Indians. a

Viewing. the treaty in this light; we are of the opinion.

that the’state is without power to charge the Yakimas a

fee for fishing. A stated | purpose of the licensing ‘act

was to provide for “the support of the state government

and its existing public institutions.” Laws of Washing-

ton (1937) 529, 534. The license fees prescribed .are

regulatory as well.as revenue producing. But it is clear

that their regulatory purpose could be accomplished

ie

otherwise, that the imposition of . license fees is not -

indispensable to the effectiveness of a state conserve

tion’ program. Even though this method may be both

convenient and, in its general impact, fair, it acts upon

the Indians, as a charge for exercising the very ‘right |

their ancestors.intended to reserve. We believe 7.

such exaction of fees as a prerequisite to the enjoyment

of fishing in-the “usual and accustomed places” ‘cannot

be reconciled with a fair construction of the treaty.

(Italics ours) ~ , |

It was the exaction of a fee for fishing which could not

recnciled with a fair construction of the treaty.

we co as : : rt oP ES ree 5 RR ee A «ae 2 Ba tate

A-49

All weed agree that the tenposition of license fees is

riot indispensable to the effectiveness of a state conserva-

tion program, but such a holding is not supporting au-

thority “for the proposition that any regulation that the

_. state adopts must be indispensable to the success of its .

conservation program before that regulation is applicable

to treaty Indians. We are convinced. that the Supreme

Court did not set up such an impossible standard in Tulee,

nor did it intend to. The real holding in ae 4 case is

[Tyhat,. while the treaty leaves the state with power

_ to impose on Indiaris, equally with others, such restric-

tions of a purely regulatory nature concerning the time

and manner of fishing outside the reservation as are

necessary. for, the conservation of fish, it forecloses the

state from charging the Indians a fee of the kind in

question here. (Footnote omitted.) (p. 684)

Tulee and other Supreme Court decisions recognize

that the state must have the necessary power of appro-

priate regulation to preserve a résource for the bénefit of

all of the people of the ‘state. New York ex rel. Kennedy

v.. Becker, 241 U.S. 556, 60 L. Ed. 1166, 36 Sup. Ct.

705 (1916); United States v. Winans, supra.

_ We are convinced ‘that the three judges of the 9th

Circuit Court of Appeals, who decided the -Maison case,

supra, read too much jnto the Supreme Court's use of the

word “indispensable” in the Tulee case and. have. created

therefrom a completely’ unworkable standard for deter-

mining what regulations relative’ to the time and man-

ner of fishing outside the reservation may be imposed on

Indians claiming treaty rights.

It would make the competent exercise of the state's

inherent power of preservation an impossibility. In New

York ex rel. Ken v. Becker, supra, the United States

Supreme Court discussed the reserved rights of the Sen-

eca Indians to fish in the waters on land ceded by them .

to Robert Morris by-the treaty of the “Big Tree” of

September 15, 17976 (7 Stat. 601). Mr. Justice Hughes,

6. Ratified by the Senate on April 11, 1798, and proclaimed by the

President. ao

ry

yy ee

‘

’

‘

PBI AE ea ty. vom ary pt aha Of Miiat ieaki a Tt To deca

|

A-50

in an. opinion adopted by the court after his resignation

in 1916, said:

It is said thgt the State would regulate the whites and

that the Indian tribe would regulate its members, but if

neither could exercise authority with respect to the

other, at the locus in. quo, either would be free to -

' destroy the subject of the power. Such a duality of

sovereignty instead of maintaining in each the essen-

_ tial power of preservation would in fact deny it to both.

_, It hag frequently: been said that treaties with the

Indians should be construed in the ‘sénse in which the

Indians understood them. But it is idle to suppose ‘that

_ there was any actual anticipation ‘at the time the treaty

was made of the conditions now existing to which the

legislation in question was addressed. Adopted when | ;

game was plentiful—when the cultivation contemplated

- by the whites was not ‘expected to interfere with. its

abundance—it can hardly. be supposed that the thought

of the Indians was concerned with the necessary exer-

cise of inherent power under modern conditions for the’

preservation of wild life. But ,the existence of the sov- |

ereignty of the State was well understood, and this

conception involved all that,was\necessarily implied in

that sovereignty, whether fully appreciated or not. We

~ do not think that it is a proper construction of the reser-

vation in the conveyance to regard it as an attempt

_ either to reserve sovereign prerogative or so. to divide

the inherent power of preservation as to make its com-

petent exercise impossible. Rather are we of the opinion -

that the clause is fully satisfied by considering it a

reservation of a privilege of fishing and hunting upon

the granted lands in common with the grantees, and

others to whom the privilege might be extended, but

-sabject nevertheless to that necessary power of appro-

priate regulation, as to adl those wfivileged, which in-

’ hered in the sovereignty of the State over the lands

where the privilege was exercised.! This was clearly

recognized in United States v. Winans, 198 U.S. 371,

384, where the court in sustaining the fishing rights

-of the Indians on-the Columbia River, under the pro-

visions of the treaty between the United States and

the Yakima Indians, ratified in 1859, said (referring

/

Fs)

AS1

to the authority of the State of Washington): “Nor

does it” (that is. the. right of ‘taking fish at all usual

and ‘accustomed places’) “restrain the State unreason-

ably, if at all, in the regulation of the right. It only fixes

in the land such easeménts as enable the right to be .

exercised.” (pp. 563, 564)

Attention is particularly directed to the quotation from

United States v. Winans: supra, at the end of the fore-

going quotation, ° |

. ; ( 4 e t > F

In summary: We have rejected the De ents’ -

ment that the Indian treaties are of no force ‘and effect

and that the state may repudi will.

_ - We have ruled that the trial

to determine whether. or not ther

of the Puyallup Indian Tribe, add that the tribe. con-

tinues to exist, at least so long as i is ‘recognized as such’

by the appropriate agencies of the United States, or until

Congress passes a termination act.

We have agreed’ with the trial court that there is no

longer a Pivelln Indian Reservation, and that the Puyal-

lup Indians no longer have any special or treaty rights to °

fish thereon. because it was once a reserv tion; however,

we hold: that they continue to have a nght-to fish at

_usual and accustomed grounds and stations and that any

regulations of the Departments limiting or restricting

those rights must be reasonable and necessary for the

_ preservation of the fishery. Es age

The state has cléarly met that test, at least to the extent

that it has established that continued use by the defend-

ants of their drift nets and set nets would result in the

nearly complete destruction of the anadromous fish runs

in. the pe po River and that a régulation prohibiting - .

suc

the use o

nets was necessary for the

of the fishery.

preservation

one EES

We are, therefore, in accord with the conclusion of the

trial court that an injunction. should be entered in this

case; however, the injunction entered by the: trial court

is much too broad. It permanently enjoins individual de-

Ta ORT NL OF ame

yi .

Be A-52

_~_ fendants arid members of the federal organization known

as the “Puyallup Tribe” from fishing in the Puyallup

River watershed and Commencement Bay in any manner -

that is contrary to the rules and regulations of the De-

partment of Fisheries of the State of Washington and the

| Department of Game of the State of Washington. It is

predicated on the trial court’s determination that ‘the |

defendants have no treaty rights.

The cause must be remanded to the trial court for the

entry of a . and decree predicated upon the prop-

osition that the defendants do have treaty rights, but

are reasonable’ and necessary to preserve the fishery.

he is a member of the Puyallup Tribe; arid (2) He is fish-

ing at one of the usual and: accustomed -fishing places of

that tribe; (3) He cannot be restrained or enjoined from

. doing so, unless he is violating a statute, or regulation of

the Departments Rone ap parent which has been «

established to be reasona le and necessary for the conser-

vation of the fishery. .

The injunction should be tailored to the particular sit-

_that they are subject to ‘conservation regulations which:

. The essence of- this opinion is—and the decree, as re-

_ framed, should so reflect: (1) If a defendant proves that

uation. A specific act or acts should be enjoined on the

basis that there has been a violation of a statute or stat-

utes, or a regulation or regulations‘ promulgated there-

under, and that such regulation or regulations are reason-

able and necessary for the preservation of the fishery. -

The findings, conclusions, and judgment in this case.

should be. rewritten to show: clearly the basis and the

éxtent of the injunction. — ) . |

The judgment and decre¢ appealed from ‘is set aside,

and the cause is remanded for the purposes indicated in

_ this opinion.

Neither the appellants nor the respondents having pre-

vailed tothe full extent of their claims, each will bear

its own costs on this appeal. 7 ioe a

6 3

¢

ASS |

* Fintey, C. J., WEAVER, and Ne asisincnene, J. J., and

LANGENBACH, J. Pro Tem., concur. :

Donwortn, J. (concurring in part and dissenting in

part)—I concur in the result reached in the majority

opinion in so far as it holds that ‘appellants in’ this case

do have treaty rights and have sanding. te assert those

rights in this suit, but I do not agree that the test of their °

right to fish is dependent on the existence or nonexistence

of a state statute or regulation which has been held by

_ the trial court to be reasonable and necessary for the con-

-« servation of fish. is siti:

IT would reverse the trial court’s degree of permanent ~ :

. Injunction with directions to dismiss the action for any

» one or all of the three reasons stated below. .

1

I.am of the opinion that:

(1) The provisions of article 3 of the Treaty of Medi-

cine Creek are presently the supreme law of the land °

and are superior to the exercise of the state’s police power

respecting the regulation of fishing by Indians at places

.. where.the treaty is, applicable. ; parts

_. . (2) If the Secretary of the Interior ‘and the Commis-

sioner of Indian Affairs have adopted the proposed rules.

relating to off-reservation fishing by treaty Indians, the ©

Federal Government has assumed control of the matters. :

in controversy in‘ this case, and state courts may not. en- ;

_ join appellants from fishing in the.Puyallup River. See

30 Fed. Reg. 8969. | /

- 4(3) Assuming, arguendo, that the trial court had power

teenjoin such fishing, the findings of fact do not support

e conclusions of. law or the permanent injunction en-

_ tered by it. In my opinion, this statement’ is gorrect re-

gardless of whether the “indispensable” test’ or the “rea-

sonable and necessary” test be applied.

_ My, views on the rights of treaty Indians to fish “at all

. usual and accustomed grounds and stations” are stated at -

- some length in the first opinion (signed by four judges)

BIN ERY, LO SION EN IO PRTN ES PP

A-54 . . > >

in ‘State v. Satiacum, 50 Wn2d 513; 314 P.2d 400

_ (1957), and in my dissenting opinion in State v, Mc-

Coy, 63 Wn.2d- 421, 387 P.2d 942 (1963). See the de-

—_— of the courts of last resort quoted and discussed

therein.

In the interest of brevity, I incorporate those two

opinions heréin by reference as a part of this opinion.

In those opinions, it was stated that, under the federal

constitution, the treaty was the supreme law of the land

and would continue to be until: ; |

(1) the treaty is modified or abrogated by act of

Congress; or - =. - Se ada

(2) the treaty is voluntarily abandoned by the Puy- -

allup tribe, or :

(3) the-supreme court of the United States reverses

- or modifies our decision in this: case. (at 529)

- In‘ the last 9 years since the two Sdtiacum decisions —

were filed none of these events have taken place. Nor

have respondents sought a final solution of the problem

through any branch of the United States Government—

legislative, executive, or the Supreme Court. “ ae

a. fF

Int the case at bar, the United States has for the first

time appeared in this court and filed a brief as amicus

curiae. Its counsel participated in the oral argument. -

The United States contends in its brief that the trial

. court’s permanent injunction fails to give any recognition

to the rights secured to the Indians by article 3 of the

Treaty of Medicine Creek. After citing cases relating to -

this cohttention, the government's brief states:

... It is enough at this point to note that the permanent.

injunction against fishing in the instant case, except

in accordance with the regulations applicable to all,

absolutely ignores the treaty-reserved rights of these

Indians. Conclusion of. Law IV, supra, is plainly con-

_ trary to Tulee. For this reason alone, the judgment and

decree ‘must be reversed. ae

—_~ ae, . 5 :

It is further argued therein that the scope of the treaty-

reserved rights of the Indians may: best be determined

by a-federal authority. The reasons supporting this’ argu-

- ment are stated as follows: , bog ee oN

“We must start with the established principle that

interpretation of a treaty with an Indian tribe, like

a treaty with a foreign nation, presents a federal ques-

tion. Worcester v. Georgia, 6 Pet. 515 (1832). Had

‘the Treaty itself, or Congress in contem rary or sub-

sequent legislation, more specifically defined the right *

reserved or regulated how it was to be exercised (which

would be another way of defining its sco ), .there

would be no ‘problem today. For,. clearly, the federal

statute would prevail, and no state law or regulation

could impinge upon the Indians’ exercise of the right j

as defined or regulated. See Missouri v. ‘Holland, 252. =

U.S. 416 (1920), where the Supreme Court rejected ee

- the argument that implementing legislation pursuant é-

to a treaty interfered with exercise of state regulatory }

provisions as to wildlife. _.

. The brief then states that, pursuant to congressional 4

action, the Secretary of the Interior and the Commissioner 4

' of Indian Affairs have proposed the adoption of certain

rules relating to off-reservation ‘treaty fishing which have _

been published in 30 Fed. Reg. 8969. The proposed rules .

were signed by the Under ‘Secretary of the Interior on y.

July 5, 1965. Whether they have yet been officially . /

adopted, we are not advised. i : me es

_, Imentioff the government's amicus curiae brief at some

' length bedause this is the first indication we have had’ of

what the government's legal or administrative position is :

in regard to the status of the Treaty of Medicine Creek |

. or to a departmental solution of the problems heretofore

= to this court conceming: the off-reservation

ishing rights of treaty Indians: ; | a.

Thus, we now have official information that the legal

representatives of the government take the position that

an ‘Indian treaty is the same as a treaty with a,foreign:-

nation. I presume that this means that an Indiaft treaty

—

: A-56

under the Supremacy Clause of the United States Consti-

tution is the supreme law of the land. Cf. first opinion in

_ State v. Satiacum, supra, and cases cited therein. We are

also assured that the Interior Department is pro ing to.

take some ‘action regarding the regulation o off-reserva-

tion fishing by treaty Indiaps. |

Rites | Tn. sot

‘I desire to point out that I disagree with the majority’s -

discussion of the holding of the Court of Appeals in’ |

Maison v. Confederated Tribes of Umatilla Indian Reser-

vation, 314 F.2d 169 (9th Cir. 1963), where that court — 3 |

said, at 172:

. . That, in both the Tulee arid Makah cases it was held .

that the Indians’ right to fish is qualified by the state’s

right to regulate such fishing when necessary for con-

servation. But, to establish necessity the state must

prove two facts: first, that there is a need to limit the

taking ‘of fish, second, that the. particular regulation

sought to -be imposed is “indispensable” to the accom-

plishment of the needed limitation.

. Before discussing whether the defendants, have sus-

tained their burden of proof it will be helpful to briefly _

explain the life cycle of the salmon and steelhead fish.

Such fish afe anadromous; that is to say, they are born

in fresh water streams, migrate to and live the greater

part of their lives in the ocean and, just before dying,

return to the place of their birth to spawn. The fis

born -in a partieular stream are delicately adjusted ‘to

its peculiar characteristics. and instinctively return to

it at the time_of*the year when successful spawning

can empts at stocking barren ‘streams liave

en Costly and only sporadically successful, and severe _

——~ decimation of a run of fish in a particular stream can

result in the permanent destruction of its population.

In traveling upstream to spawn many debilitating hard-

ships are encountered, including natural rodaters, dis-

ease and water pollution. By the time hey reach the

spawning % the body oils of the fish are prac-

tically used- up, and they are often cut, bruised, dis-

onsed, and afflicted with fungus growths.

s

YY

_

oe AST |. |

Defendants contend that “conservation through wise

use, the keynote of modern fisheries: management,” dic.

tates that the plaintiffs’ he on the spawnin ing

-. Srounds be restricted because the value of the fis]

there is highest as seed stock but lowest as food.

After discussing certain testimony presented by the

regon officials, the Court of Appeals concluded:

However, the treaty dealt only with the rights of the

plaintiffs’ ancestors, and did not’ sécuré rights to any ..

other group or’ class. Therefore, while a restriction of

the \fishing activities of the plaintiffs must be indispen-

sable, as required by the treaty [Tulee v. Washi

su

pra}, a réstriction of the — activities of other

citizens of a state.is valid if merely reasonable, as re-

quired by the Fourteenth Amendment to the United

States, Constitution. Thomson v. Dana, -52 F.2d\ 759

(D.. Ore. 1931); aff'd. 285 US. 529, 52 S.Ct. ‘409,

76 L.Ed. 925 (1932). The complete exclusion of sports .

fishermen from the spawning grounds as an alternative

does not amount to arbi iscri

them, because the state possesses broader power to

regulate \sports. fishing than it does to regulate fishing

by the Indians. This one of the alternatives listed by

: - court being available, we need ‘not discuss the

others, | ae ie | |

The word. “indispensable” is said by the majority not

to be supported by the two cases cited by the: Court of

Appeals, to wit Tulee v. Washington, 315 US. 681, 86

2

While the denial of certiorari is not to be considered as

an. expression of approval of ‘the. lower court’s ‘decision,

the Maison case involved the interpretation of a treaty

which under the Supremacy Clause of the United States

Constitution is the supreme law of the land, and hence

[

Sie pas

Ps ve

etiinbieita a

ination against-

eI ee

\

. | A-58 |

. could be authoritatively interpreted only by the United

. States Supreme Court. If ‘the word “indispensable,” in

the context in which the court of appeals used it in the

Maison case, substantially changed meaning of the

treaty as to the state’s power of regulation of Indiaii _

fishing rights, one would ‘suppose that, in view of the

many conflicting decisions. of. various state and federal

_ courts on this vital subject, the Supreme Court would

have granted certiorari? ~

-. The Maison decision was followed by Judge Solomon

sitting in the United States District Court for the Dis-

trict of Oregon in Confederated Tribes of the Umatilla

Indian Reservation v. Maison, —— F. Su p. — —(de-

cided August 8, 1968). This case involved the right of

treaty Indians to hunt game. The language of the treaty

involved was similar to the treaty in + oy case now before

us. In upholding the Indians’ right -under the treaty to

hunt game, Judge Solomon said:

_ In Confederated Tribes of the Umatilla Indian Res-

ervation v. Maison, et al., 186 F. Supp. 519, 520, I

construed this article to mean that the State may not

restrict the off-reservation fishing rights, set forth in

the treaty without showing that such restriction was .

necessary for conservation of the fish. The Court of

Appeals in affirming this decision laid down the test

to be applied to State-imposed restrictions of treaty

rights: 7 ee,

. .'. While a restriction of the fishing activities o1

_ the plaintiffs must be indispensable, . . .- a restrietion

of the fishing activities of other citizens is valid if

merely reasonable . . .” (314 F.2d 169, 174 emphasis

is original). ney Ah a |

“

In other words, defendants here contend that .in

spite of the provisions of the treaty, the Indians have no

greater rights to fish and hunt: off. their reservation

7. This is the second time that the United 2s Supreme Court has

- . failed to grant a petition for certiorari? which sought an authoritative

‘Tuling on the status of an Indian treaty with respect to state police .

power. See discussion of State v. Arthur, 74 Ida. 251, 261 P.2d 135

(1953), found in State v. Satiacum, 50 4Wn.2d at pages 525-529. *

. ( ;

~ : AN

} : uaheenees

i aeaeiennt meee a

A-59

‘than’ any other Oregon citizen. This contention was

made and rejected in United States v. Winans, 198 -

U.S. 371 -(1905); Tulee v. Washington, 315 US. 681

(1942); and Makah - Indian Tribe v. Schoettler, 199

F.2d 224 (9th Cir. 1951). <

‘No one disagrees with the defendants’ argument that

regulation of fish and game resources is necessary and

desirable, and that an intolerable situation would arise

if all citizens were permitted to fish or hunt without. .

restriction. However, the issue here is whether a State

is permitted to proscribe or limit the treaty rights of

Sndiens without showing that such restriction is indis-

pensable. Confederated Tribes, supra.

fishing rights of treaty Indians, I think that ‘this court

shoul nison ision |

Even if the rule approved by the majority decision in.

the case at bar is followed (i.e. that the state has the

€n of proving that its regulations are reasonable and -

tf assaty to conserve the fishery), I see no need for a

further hearing. a ee , |

The trial court stated in its memorandum decision. that

_the total amount of salmon caught by Indians in’ the

entire state in 1964 was only between 3 per cent and 5

per cent of the total number taken. by Indians and non-

The trial court found the facts as to the fishing ac-

tivities of appellants to be: A

XIII. That the individual defendants -began. openly

fishing the Puyallup River in 1953 contrary to the laws,

rules and regulations of the State of Washington. Since

that time, the defendants have gradually increased the

intensity of their drift net and set net fisheries, usi

.

la a lS

ern nylon monofilament nets, to the point that the -

peeks 2

A-60

_ anadromous fish runs of the Puyallup River are present-

_ ly.unable to maintain themselves in an abundant supply

without supplemental plantings by the state.

XIV. The Puyallup River from Commencement Bay

to its upper tributaries constitutes. and is a prime

Spawning and rearing area for anadromous fish.

_ XV. The defendants have indicated that unless re ~

s, Strained from so doing, they will continue to fish in

_ the Puyallup River and Commencement Bay in the

manner in which their fishing activities have taken

place since 1953.

XVI. That the place, time, and manner of fishing by

the defendants was and is in violation. of the rules,

and. regulations of the. State,of Washington. That the

fishing activities of the defendants, if allowed to pro- -

ceed unrestrained could result in the destruction or .

serious impairment of the anadromous fish runs of the _

‘Puyallup River. |

. “XVII. That once anadromous fish runs in a river

system have been destroyed, it is. generally impossible ©

_. to reestablish them. “6 :

, XVIII. It is-reasonable. and necessary that state con-

servation, rules and regulations be uniformly sopted

to. all citizens on an equal basis including the defend- .

ants. , |

The ultimate finding of fact is that the fishing ac- ..

tivities of appellants, if not restrained, could result in the

destruction or serious impairment of the anadromous fish

runs on the Puyallup River. =~ ,

The-above quoted findings do not, in my opinion, sup-

port the conclusion that:

It ist reasonable and necessary that state conservation

rules and regulations be uniformly applied to all citi-

zens on an equal basis including the defendants.

Neither do- they justify the entry of the trial court’s

judgment and decree which contained tie following in-

junctive provision: — ?

. — ~ ee

er RR EEL Sr a Oh a . at ‘

®

te A-61 ees

It is hereby Ordered, Adjudged, and Decreed That: |

° _ The individual defendants and ‘all members of the

‘federal organization known as the “Puyallup Tribe” are

hereby permanently enjoined from fishing in the Puy-

allup River watershed and Commencement Bay in any

manner that is contrary to the laws of the State of

I agree with the following statement made in the brief ;

of the amici curiae ‘Association on American Indian Af- | =a

fairs, Inc., as to the effect of the trial court’s permanent

injunction quoted above wherein it is said:

rr

The decision below concerning the purported non-

existence of the P:vallup -Tribe ‘today is novel, wholly

contrary to, well-established principles of Indian law... - ~~

and completely at odds-with-sound public policy. In the ©

_ first place, only Congress, and clearly not the State

courts, has power to- effect the termination. of* tribal

_ Status. Conch County v. Seber, 318 U.S. 705, 718

(1943); United Statés v: McGowan, 302 U.S. 535

598 (1916); United States v. ‘Sandoval, 231 U.S. 28 - *

al ae Met ad

| Congress ‘has particular: pertinence in this case where:

withdrawal of recognition from the Puyallup Tribe (at.

least in ™ view of thé lower court) effectively would ,

4

é

FOE LLY AE INE LEOL SEE ATE RCE TSH) ce hommes rare

abrogate g solemn: tieaty commitment of ‘the United a

States.

As indicated above, I- likewise- agree. with the closing | a 4

statement in the brief of the amicus curiae Association

Of Indian Affairs, Inc., which states: _ .

The Superior Court’s Findings of Fact and Conclu-

sions of .Law clearly fail to measure up to this stand-

ard. Neither the findings nor the memorandun; deal

¥

a judgment and decree of

eae

A-62

with the critical question—i.e., whether the State could

accomplish its conservation objectives through more

rigorous regulation of non-Indian fishing or by other

-_Means not having an impact upon appellants. Simi-

larly, the court below appears not to em considered

whether preservation of the Puyallup River fishery, as-

suming the-need for regulation, requires so severe a

curtailment of Indian fishing as the respondents here

seek to impose. Such disregard for the applicable’law,

particularly as enunciated by the United States Court

of Appeals for this Circuit, cannot be allowed to stand.

In summary, unlike their non-Indian fellow-citizens,

enrolled members of the Puyallup Tribé have a vested.

property right under the Treaty of Medicine Creek to

fish at all usual and accustomed places outside their

reservation. This off-reservation right to take fish,-so_

essential to the. Indians’ very existence, ‘is protected

under Federal law, and, at the very least, may be lim- —

ited by State law only under extraordinary circum-

stances. As a matter of law, the Washington conserva-

tion statutes and regulations may not be enforced

against Indian treaty fishing rights in the same man-

ner as they are against the bare fishing privileges of

- Other persons..In the former situation, aie the latter,

‘the-State of. Washington has the burden of ‘proving

_ affirmatively that application to appellants of the at-

tempted regulations is indispensable to the conservation

of the fish resource and the task of further en. |

that the desired conservation —— cannot be achieve

in some other.fashion. Respondents made no such show-

ing in the lower court.: : :

, .Unless it be -held that Indian treaties are not treaties

within the-meaning of the Supremacy Clause of the Uni-

ted States Constitution and once are not the supreme

law of the land and do not override the police power of

the states (contrary to the holding of the Supreme Court,

cited below),8 I can only reach the conclusion that the

) the trial court should be reversed

-with directions to dismiss the action. ee 2s

8. See cases discussed in the first Satiacum opinion (50 Wn.2d at

pages 516-519). -

In State v. Quigley, 52 Wn.2d 234, 324 P.2d 827 (1958), a case in

®

A-63

I am further of | the. opinion. that respondents have

failed to prove either that the state laws and regulations

here involved are ‘either indispensable or reasonably nec- .

essary to the conservation of salmon fishery on the Puy-

allup River and hence would reverse and dismiss for

that reason. Coss ;

: HUnter, J. (dissenting )—I dissent. The ultimate hold- _.

’ ing of the-majority. is that the Puyallup Indians are ‘sub-

ject to regulations reasonable and necessary for the pres-

ervation of the fishery. The~majority’s. modification of

the trial court’s injunétion when read with this holding

- is not consistent. The trial court properly applied our

existing conservation laws to the Puyallup ‘Indians by its

‘injunction. The power of the state of Washi gton to regu-

_ late fishing for purposes of conservation has been clearly

recognized as applying to the Indians equally with others

by the United States Supreme Court ’in the case of Tulee

v. Washington, 315 U.S. 681, 684, 86 L.Ed. 1115, 1119,

62 Sup. Ct. 862, 864 (1941). In this case Justice Black __

for the court stated:

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

| a, and ~ ge ong Nes Picg that, while the

treaty leaves the state with power -to impose on In-.

-. dians, equally with others, such restrictions of a purely

regulatory nature concerning the time and manner of

fishing outside the reservation as are necessary for the

conservation of fish, it forecloses the state from charg-

_ing the Indians a fee of the kind in question here.

(Italics mine.) © :

Our present laws and regulations relating to the use of |

gear, and the time and place of taking fish are for no other

purpose than the reasonable and necessary preservation

of the fishery. These laws and — accomplish the

purpose of the ultimate holding of the majority and there-

which a non-treaty Indian claimed the right to hunt deer on his own

. Property without a hunting license, this court, in a unanimous en banc.

, Opinion concluded with this dictum: “Of. course, a treaty takes preced-

ence over a’state law, but appellant has no treaty rights that restrict

the state in its exercise of the police power. Our question, therefore,

must be answered in the affirmative.” le ca

rs

oe

.

= |

A64 °

fore should have been imposed on the Indians equally

with others as was done by the trial court.

In my opinion the ultimate holding of the majority is

consistent with the injunction entered by the trial court,

and there is no need for its modification. —

_ Rosewuin and HALE, JJStoncur: with HunTER, J. |

HALE, J. (concurring in the dissent)—I agree with and *

have signed Judge Hunter’s dissenting opinion: As a pref-

ace to further comment, it should be noted that this case .

has nothing to do with protecting or preserving for the

Indians any rights in land or personal property or foster-

ing, their management of business or tribal affairs. It

involves only the claims of a right to fish in places where

all others are forbidden. at

Appellants assert the right under a treaty to violate the

laws of a sovereign state, laws designed to preserve, pro-

tect and develop a great natural resource that contributes

vastly tothe economic and recréational welfare of millions _ -

of its citizens. Appellants claim powers which, if exercised

in full, will inevitably destroy this resource in the Puy-

allup River. : ae a

I find no language in the Treaty of Medicine Creek

(10 Stat. 1182) concluded December 26, 1854, by Isaac

I. Stevens, Governor and Superintendent of Indian Affairs

of the Territory of Washington, on belialf of the United

States and the “chiefs, headmen, and delegates ‘of the

Nisqually, Puyallup, Steilacoom, -Squawskin, SHomamish,

Stehchass, T’Peeksin, Squi-aitl, and Sa-heh-wamish tribes

and bands of Indians,” warranting the conclusion that

the Indians should be -forever immune from the state's ©

game and fishery laws. The most cogent language of the

_ treaty, that particular phraseology designed to prevent

air and invidious discrimination against the Indians

and which vouchsafed to them the right to hunt and fish,

granted these very rights in common with all citizens of

the territory See Treaty with Nisqualli, Puyallup, Etc.,

1854, art. 3, 2 Indian Affairs, Laws and Treaties 496 -

(1902). As I would permit no discrimination against the .

9. 2 Indian Affairs, Laws and Treaties 495 (1902). |

.

ee of

en antng,

ABS

descendants of the Puyallups, I would allow no discrim- .

ination in their favor either.

In my opinion, most of the decisional law written

about Indian treaties, although intended to protect the

American Indian in the rights to p and the. pur-

suit of happiness, has had a contrary effect. Decisions

relating to Indian treaties begin with the hope of pro-

tecting the Indian,.‘and inevitably end by treating the

. Indians as aborigines, and in doing so not only have

tended to degrade the Indian and perpetuate the stigma

of ‘second-class citizenship earlier surrounding him but

- blinded this country to the need for legislation which will

genuinely rehabilitate our Indian citizens and enable them

to play a full and active role in the affairs of this state

and country in common with all citizens of whatever

racial origin. - a | Shae .

>

The majority decision fosters an illusion that ‘some-

how by regarding the Treaty of 1854 as a device to con-

fer upon shareholder members in appellant, The Puyal-

lup Tribe, Inc., special privileges, immunities and emolu-.

ments not shared equally with descendants of the white

Settlers of 1854 or the citizenry at large, the courts are

righting a wrong long suffered by the Indians.

)

But while intending otherwise, the opinion discrim-.

inates-in favor of the Indians, granting to a few of them

' special favors, privileges and immunities not claimed or

shared by other Indians, and perpetuating the idea that

a treaty with the ‘natives in 1854 is a viable compact

with their remote descendants. In holding thus, the de-

cision again — the day when*some descendants of »

the Puyallups will achieve full responsibility as citizens.

I would put an end to such an invidious and _discrim-

inatory concept, and read the treaty as it was written.

Next, on the question of tribal existence, I think the

evidence establishes and the learned trial judge rightly

found that appellant, The Puyallup Tribe, Inc., never

acquired nor now has any rights under the treaty. I be-

lieve that the tribe or band which signed the Treaty of

Medicine Creek of 1854 has long since disappeared, its

BRE DE a et Btn ~

A-66

- lands sold wad descendants absorbed into the bod solitic ‘

and that the conclusion of the learned trial judge that

There is no presently existing Puyallup . Tribe of |

Indians which succeeds in interest to the ori ‘Puy- |

_ allyp. Indian Tribe which was _—* to 7

_ of Medicine Creek. ,

‘is well supported by both the history of the tribe and és

evidence in the case. This finding and the judgment

should be affirmed.

a0 " * ; ee Sleds

¥ Cad PREY ERTL OS 2 Ss EON a

| A67 | ,

IN THE SUPREME COURT OF THE STATE OF

WASHINGTON: ee

Remittitur

ca No. 38611

Pierce

— sania

No. 158069

_ DEPARTMENT oF Game of the State of

Washington and the DEPARTMENT OF

_ Fisuerues of the State of Washington, .

Respondents,’ :

‘THE PyYautup Trips, INc., a corporation,

oe ee etal, :

ae Appellants.

The State of Washington to: ‘The Superior, Court of the -

_ State of Washington in and for Pierce County ae ;

This is to certify that the — of the Supreme Court

led on January 12, 1967; be- -

of the State of Washington.

came the final judgment of this court-in the above entitled

case on March 13, 1967. This cause is remitted to the

superior court from which the appeal was taken for furth.

er proceedings in accordance with the attached certified

_ copy of the opinion. -

_ Pursuant to Rule 55 on Appeal, costs are taxed’ as‘

follows:

_ No cost bill having been filed, costs are deemed waived. |

cc: Court Reporter |

Mr. Arthur Knodel ss >

Mr, Malcolm McLeod |. - -

.Hon: John. J. O'Connell .

Mr. Joseph L. Coniff :

Mr. Mike Johnston vite Hee -

IN TESTIMONY WHEREOF, Ihave hereunto set my

. hand and affixed the seal of said Court at Olympia, this

15th day of March, A.D. 1967. :

. WILLIAM M. LOWRY, Clerk of the Supreme Court,

State of Washingtén.

Maced yi | saver renew) , Sh orien beng ue . . “A.

| . A-68 Bt eae

IN THE SUPERIOR COURT OF THE STATE OF

WASHINGTON IN AND FOR THE COUNTY OF

PIERCE ~ Veena

No. 158069

Amended

- Injunction

DEPARTMENT OF GAME of the State of . _

Washington and the DEPARTMENT OF -

Fisnenies of the State of Washington,

Plaintiffs,

.

THE PuyaLLup Trips, INc., a

_ Federal Organization, et al.,

Defendants.

This matter having comé on r r for hearing before

_ this court upon the motion of plaintiffs and defendants

to amend the ‘1 ermanent injunction heretofore entered

by this court, the plaintiffs and defendants being repre-

sented by counsel, and the court being fully advised;

now therefore, °

IT is hereby ordered, adjudged, and poe that:

' The individual defendants and all members of the fed-

- eral organization known as the “Puyallup Tribe” are here-

. by. nmeninenty enjoined from driftnet or setnet fishing

ae Puyallup River watershed and Commencement

“ire Bay in any manner that is contrary to the laws of the -

State of Washington or contrary -to the rales and regula-

tions of the Department of Fisheries of fhe State of Wash-

ington and the vp aemesal of Gam of the State of

Washington. | . a

dinaed pe

J. L. Coniff, |

Special Assistant Attorney Cue

Of Counsel for Plaintiffs.

APPENDIX C

| | CONFLICTING OPINIONS .

H. G. Maison, Individually and as Superintendent, Dept.

of State Police of the State of Oregon, et al.,

Appellants,

Vv. on ;

CoNFEDERATED TRIBES OF THE UMATILLA INDIAN

RESERVATION, et all, Appellees.

No. 17139

UNITED STATES COURT OF APPEALS

NINTH CIRCUIT

Feb. 15, 1963.

Robert Y. Thornton, Atty. Gen. of Oregon, Arthur G.

Higgs and- Roy C. Atchison, Asst. Attys. Gen., Salem,

* Or., for appellant.

Frank, E. Nash, Mark C. McClanahan, King, Miller,

Anderson, Nash & Yerke, Portland, Or., for appellees..

Before HAMLIN, Merrill and) KOELSCH, Circuit

Judges. |

KOELSCH, Circuit Judge.

This case involves fishipg rights of the Gpnfederated .

Tribes of the Walla Walla’ Cayuse and Umatilla Indians

under a treaty with the United States.

admittedly valid, can be applied to these plaintiffs” See Phillips v. United

States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941).

.

als “en OT OI OTe Oy, Te — es

\

A-70

conferred upon this court under the provisions of 28 |

US.C.§ 1291 7

-It appears that late in May of 1855 a joint council was

held at Camp Stevens in the Walla Walla Valley of the

State of Washington between representatives of the United

States and certain Indian tribes of Washington and Ore-

-gon. At that council the plaintiffs’ ancestors were per-

suaded..to accept a treaty containing the ‘following pro-

‘vision: — :

“Provided, also, That the exclusive right of taking fish

in the streams: running through an bordering said

reservation is hereby secured to said Indians, and at

- all other usual and. accustomed stations in common_

with citizens of the ited States, and of erecting

suitable buildings forcurn the same; the privilege of

hunting, gathering roots and berries and pasturing their

- stock on unclaimed lands in common with citizens, is

also secured to them.”2 ,

The controversy here concerns that portion of the treaty

provision which relates to the Indians’ right to fish out-

side their reservation “in common with .citizens. of the

United States.” |

bia. It further threatened to have arrested any members

of the Confederated Tribes who fished contrary to the

laws and regulations of Oregon.

Contending that the state’s restriction of their fishing

activities was contrary to the rights guaranteed them by

treaty, the Confederated Tribes and several of its tribes-

men sought a declaratory judgment. and injunction. The

court's judgment was generally favorable to the Indians:

“Ordered; Adjudged, and Decreed that the Confed-

: = Treaty with the Walla Walla, Cayuses, and Umatilla Tribes and

Bands of Indians, Jurie 9, 1855, Art. 1, 12 Stat. 945. ..

rd

5 ies aoe

7 A-71 .

erated Tribes of the Umatilla Indian Reservation and

the members thereof have a ti ht, privilege, and im-

munity afforded them under th

_ 1855,- between said’ Tribes and the United States of

taries of the Columbia and Snake Rivers in: Oregon,

including the John Day, Wella Walla, Grande Ronde,

9

e =

and Imnaha ‘River systems, without restriction or.con- |

trol under the game laws ci the State of Oregon or

regulations issued pursuant thereto.”

ae the court declined to issue an injunction, it

jurisdiction to grant such relief. The defendants

- have appealed.3 |

4%

The extent of Indian fishing’ rights under a treaty. be-

tween the United States and the Yakima Indians was in

= to the treaty the Indians had unlimited fishing

rights:\' —.

“ke \utehe to resort to the fishing places in contro-

_ versy was a part of larger rights possessed by the

Indians, upon the exercise of which there was not a

shadow of im ediment, and which were not much less

necessary to the existence of the Indians than the at-

mosphere they breathed.”. 198 U.S. at 381, 25 S.Ct.

664. .

Explaining the effect of th treaty upon those rights, the

court continued:

“New conditions came into existence, to which those

rights had to be: accommodated. Only a limitation of

em, however, was necess and intended, not a tak-

ing away. In other words, the treaty was not a grant

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

—@ reservation of those not granted.” (Emphasis add-

ed.) Ibid. ee :

The treaty involved in thé instant case is substantially

similar to the Yakimas’ treaty and was negotiated at the

3. The trial court’s opinion is reported at D.C., 186 F. Supp. 519.

,

A-72

‘same common council. Thus, the Suprerhe Court's analysis

applies equally here. We hold that the plaintiffs’ —

reserves to them those unimpeded fishing rights whic

their ancestors had long enjoyed before the treaty, sub-

ject qnly to the qualifications contained within that docu- .

_ But, the question remains, what are those qualifica-

tions

One of.them was pointed out in the Winans case. There

it was stated that, Gecnuse of the provision that the In-

dians were to fish “in common with citizens,” the In-

dians had not retained an exclusive right to fish at their

usual and accustomed stations. Citizens might-share it.4

United States v. Winans, supra at 381.°

Another of the qualifications was explained in Tulee v. ©

Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115

(1942) and Makah Indian Tribe v. Schoettler, 192 F.2d

224 (9th Cir. 1951). In the former case it appears that

one Tulee, an Indian, was convicted of catching salmon

without a license required by a statute of the State of

Washington. Tulee claimed the, protection of the same

treaty that was involved in the Winans case, arguing that

it gave him a right to fish without restriction “at all usual -

and accustomed places” within the ceded area. The State

countered with the argument that, because of the phrase

“in common with citizens” the appellant’s rights were no

greater than those of other citizens. The court did not

wholly approve either contention, but said:

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

narrow ‘and. the appellant's too broad; that, while the

treaty leaves’ the state with power to impose on In-

. dians, equally with others, at 9 restrictions of a purely

eed nature concerning the time and manner of

fishing outside the reservation as ere necessary: for the.

conservation of fish, it forecloses the state from charg-

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

(Emphasis added.) Tulee v. Washington, supra, 315

U.S. at 684, 62 S.Ct..at 864. . .

4. Of course, this does not mean that a state cannot, by reasonable

laws and regulations, exclude from fishing those of its citizens who are

not parties to the treaty.

of a run o

| A-73

We applied ‘the doctrine of the Tulee ‘case in Makah.

Court held in the Tulee case that where a tréaty guaran- |

tees certain fishing rights to Indians and a state regulation

impairs this right, the state must prove that its regulation

is necessary’ * * *.”.Makah Indian Tribe v. Sc ettler,

supra, 192 F.2d at 226.

Thus, in both the Tulee and Makah cases it was held

that the Indians’ right to fish is qualified by the state’s ~

right to regulate such fishing when necessary for con-

. Servation, But, to establish: necessity the state must prove

; of fish,. second, that the perticalar regulation sought to

a

<<

imposed is “indispens

the needed limitation.

‘Before discussing whether the defendants have sus-

e to the accomplishment of

¢

| tained their burden of proof it will be helpful to briefly

_ explain the life cycle of the salmon and steelhead fish.

Such fish are anadromous; that is to say, they are born

in fresh water streams, migrate to and live the greater

part of their lives in the ocean and, just before dyi g,

return to the place of their birth to spawn. The fish

in a particular stream are delicatel adjusted to its

culiar characteristics and instinctively return to it at the

time of the year when successful spawning can: occur.

Attempts at stocking barren streams. have been costly

fish in a partidular stream can result in the

permanent destruction of j population: In traveling up-

stream to spawn. many debilitating hardships are encoun-

tered, including natural predators,. disease and water pol-

lution. By the time they, reach the spawning ground, the

and only sporadically aril and severe decimation

body oils of the fish are practically used up and they ©

oay

ONIN RY Mans MEE

hie adie eae tee ae

- be restricted because the value of the fis

~

- Al -_

are often cut, bruised, diseased, and afflicted with fungus

Defendants contend that “conservation through wise

use, the keynote of modern fisheries management;” dic- :

tates that the p! intiffs’ fishing on the spawning grounds

h there is highest _

as seed stock but lowest as food. In support of. that con-

tention they cite the testimony of three expert witnesses;

namely, Robert N. Thompson, a fishery biologist of the ~

Fish Commission of Oregon, Richard T. Pressey, Super-

visor of Research for the Department of Fisheries of the

State of Washington, and Dr. H. John Rayner, Chief of

the Wildlife Research Division of the Oregon State Game

‘Commission. . .

- Thompson's testimony, to the effect that unrestricted

- fishing of sufficient industry could exhaust the spawning

beds, is-a proposition about which there can be no quar-

* rel. Kad ay did not relate that proposition to the facts

of this case, but, on the’contrary, testified that the plain-

tiffs have never shown a ‘disposition to fish with marked

intensity.

Pressey testified that commercial fishing by Indians on

spawning grounds in the State of Washington had seriously

reduced some runs; further, that the taking: of fish by

.. the plaintiffs for their own subsistence would have a —

‘similar, although not as serious, effect. However, the trial

court was not bound to atcept this testimony. It was’

largely based upon the reports of an interested party;

thermore, the witness achenndall ed that the number

of fish had been increasing in the Blue Mountain streams

in recent years and that, in the absence of depletion,

there woud be no need for regulation.

_ Dr. Rayner testified that the taking of fish from the

spawning grounds creates an “unhealthy situation,” that

it is inconsistent with “efficient. conservation methods,’

that “indiscriminate” fishing endangers the fish life of a

- stream, and that fish,“must be protected” in their spawn-

ing beds. These statements are ambiguous and vague,

but even if they reflected an opinion of the witness that

restriction of plaintiffs’. fishing was necessary for con-

~

Sere

cubidi i oii RR

FE a a ge RS aE a EN Laat

A-75 |

servation, nevertheless, that opinion was not. binding on

* the trial court.

a et

—

In Dr. Ra

_ involves a compromise of the competing interests of the

[2] Such a statement is not evidence oF that “neces-.

sity for conservation” required by the Tulee case. In ‘that

case-the Supreme Court held that a regulation, to be nec-

essary, must be “indispensable” to the effectiveness of a

state conservation program, It follows that festriction of

the fishing of Indians js justifiable only necessary con-

servation cannot be accomplished by a restriction of the

fishing of others. Dr. Rayner, in testifying that a limita.

tion of plaintiffs’ fishing was necessary, not only ignored

that requirement, but based. his opinion on the contrary

premise that the taking of fish by Indians can validly be

- Testrictéd to satisfy the needs of the rest of society:

value on the issue of necessity, nevertheless, ‘his decision

that the defendants failed to sustain their burden’ of proof

on that issue must “be upheld. The trier of fact is not .

53 S.Ct. 83, 77 L.Ed. 548 (1932). The trial judge could . -

justifiably doubt the validity of the experts conclusions

ea Lo Tm

eae ES ar ene (oper sinh 4 WOrSre

A-76

in view of the other evidence that the number of fish

taken by the plaintiffs is only a small pereentage of the °

tgtal salmon and steelhead harvest; that the plaintiffs —

chave never, in over a céatury, destroyed a salmon run

in the Blue Mountain streams or so ‘depleted a run that

destruction was threatened; and that, not only has the

number of fish in these streams been increasing in recent

years, the population of the Confederated Tribes is small

and probably is declining.5 e

Because the ag se Wipro no wren a was. nec-

essary its broadly worded ju gment, applying to any ,

laws or regulations of the State of Oregon, is proper. Of

course, a substantial change in conditions may warrant

the later imposition of restrictions upon plaintiffs’ fishing.

_. In its opinion the trial court stated:

“Although the closure of streams during portions of

the year is one method of conserving resource and

may be generally fair and convenient, it cannot be

permitted to curtail treaty fishing rights of Indians

where there are alternative: methods of attaining the

same objectives."6 ; sie

It is apparent from this that the judgment not only was

pat le upon a finding that no restriction of plaintiffs’

_ fishing was necessary, but also, upon a finding that if it

was necessary, the laws and regulations specifically in-

-volved in this case could not be imposed.

But the defendants argue that none of the alternative

conservation measures specifically enumerated in the trial ,

court’s findings were available. For example, one of those

listed was‘ that the defendants could achieve conserva-

tion by limiting or prohibiting the taking of fish by sports-

men on the spawning grounds, and defendants argue that

to do this would violate the ‘provisions of the treaty.

[5,6] However, the -treaty dealt only with the.

rights of the plaintiffs’ ancestors, and did not secure rights

- 5. In‘ 1855 there were approximately 1500 Indians in the Confeder-

ated Tribes; at the time of the trial they numbered only about 1200.

~ 6. Confederated Tribes of the Umatilla Indian: Reservation v. Maison,

186 F. Supp. 519, 520-521 (D.Or,1960). 3

_ firmed.

_ <

aati AM we Sat he i de a Ot _—

ee ~ S

/

”

A-77

>

to any other group or class. erefore, while a restriction

' ofsthe fishing activities of e plaintiffs must be indis-

ired by the treaty [Tulee p. Washington, -

pensable, as req ;

supra], a restriction of ‘the ishing: activities of other citi-

zens of a state is valid if merely reasonable, as required

_ by the Fourteenth Amendment to the United States Con-

it does to regulate fishing hy the Indians. This one of the.

alternatives listed by the court being available, we need

not discuss the others.

/

_ The judgment is affirmed.

INo. 38545. En Bane. July 1, 1957]

Tue STATE or Wasuincton,. Appellant, v. Rosert \ °

~SaTiacum, et al., Respondents.1 :

: Appeal from a judgment of: the Superior Court for

Pierce County, No. 32128, Soule, I., entered October 20,

1955, dismissing a Prosecution fcr ‘illegal fishing. Af-

~

John J. O'Connell, John A. Petrich, Keith D. McGof-

fin, and John G. M cCutcheon, for appellant.

Malcom Stewart McLeod and Wing C. Luke, for. re-

spondents. _ )

John J. O'Connell, Joseph T. Mijich, Nathan G. Rich.

ardson, Arthur Lazarus, Jr., and Theodore H. Little, amici

curiae. .

Donworrta, J.—The only estion presented’ on this

appeal involves: the Tight of defendants, who are Puyallu

Indians, to fish on the i, Post during the closed

. Season’ (1) within the exterior boundaries of the original

‘ Puyallup an reservation, and (2) “at all usual and

1. Reported in 314 P.24 400. °

EE es | Pevernhygee

Th

FD ld a es le ate

e . . .

Ee a

accustomed fishing grounds and stations” under the treaty .

of Medicine Creek of 1855. 10 Stat. 1132. .

Defendants were jointly charged by amended complaint

in justice court with five counts of illegal fishing, alleged

to have occurred on November 10 and -1I, 1954, on the

Puyallup River in Pierce County. :

The acts alleged to be contrary té statute were: (1) use

of a net for the purpose of catching food fish (salmon ),

contrary to the provisions of R.C.W. 75.12.060; (2) use

6f a net for the purpose of i game fish (steel-

head), contrary . a provisions of R.C.W. 77.16.060;

3) possession of game fish during ‘the closed season,

- . contrary to the provisions of R.C.W. 77.16.030 and rules

010 et seg. Va 4

and regulations promulgated by the state game commis-

_ sion under authority of R.C.W. 77.12.010 ct seq.; and

(4) possession of food fish ‘during the closed season,

contrary to rules and regulations promulgated by ‘the

director of fisheries under authority’ of R.C.W. 75.08-

| r ;

After trial in justice court, James Young was found *

_ guilty on” four counts, and Robert’ Satiacum was found

- guilty on two counts. fie! appealed to the Superior Court

of Pierce County, and following a trial de novo, the court

entered a judgment of dismissal, stating, in part, as fol-

| ‘lows:

“Tr Is Orperep, Apjupcep and Decreep that the.

within cause be and hereby is dismissed as to each count

for want of sufficient evidence, it a pearing from the .

oral stipulation herein that the dehendlaais are Puyallup

Indians, that they claim fishing rights under the Treaty

of Medicind Creek of 1855, and that: the acts herein

took place: at a usual and accustomed fishin ound of —

the Puyallup Indians, and the State’ having. failed- to -in-

troduce any evidence that as to Puyallup Indians the

_ Statutes and regulations herein involved: were reasonable

and necessary forthe conservation of fish.” |

Briefly stated, the- events which led to the’ arrest of

“respondents are as follows: -

- On November 10, 1954, law enforcement officers ob-

~

* — . Ce Be ret

oe ound PA ar hone ae

. .

e ila

~~ By. hs Peete

“4 tae le Ne

¢.

A-79

served James Young tending two fixed nets located on

the Puyallup. River within the city limits of Tacoma.

The law enforcement officers testified that on. that date

Mr. Young had two salmon in his possession, but they

did not arrest him. ares |

both: defendants on the same location tending the two

nets. The officers testified that defendants had oan steel-

| head fish in their Possession on this date, at which time

defendants were arrested. . |

The parties: stipulated that there is in full force and ef-

fect the treaty of Medicine Creek of 1855, a valid

the Wheeler-Howard act of 1934, as amended (25 U.S.C.

§ 461-479). that the “lower river -net” was located

- inside the original Puyallup. Indian reservation, estab-

lished by treaty with the United States, but. that the

land on each side of the river had been alienated by the

burden of Proving that the regulation there in question

wes reasonable and necessary for the conservation of fish,

_ The state has appealed from the trial court’s dismissal

of the charges. Its sole assignment of. error is directed to

sufficient evidence as to the reasonableness and necessity

f the statutes and regulations invelved for the conserva-

“™\

4

°

—— a a EOP . J

ee eee ee ee s . —e : , : 7,

elptetns: oa A-80 ; re er ow

Respondents contend that, while the Makah ¢ase is

authority for ‘sustaining: the judgment of the iiell Geek

the real issue presented for decision is whether the police

power of the state, as expressed in the statutes above

| ~. referred to, can a ee guaranteed to the In-

: dians under ‘the treaty of She-Nah-Nam or Medicine

’ +. Creek of 1855. rane. eo |

This \treaty is one of several treaties entered into by

Territorial] Governor Isaac I. Stevens,. as representative of

. the United.States; and the Indian tribes in the Washing-

ton territory following its creation. As a result of the Med-

icine Creek ‘treaty, a vast.territory was “ceded” to the

-* United States by. the Indians, and a small tract of land

- extending inward from the mouth of the Puyallup River —

was retained by the\Indians as a reservation.

“ee III of the treaty providesas follows:

4 . a \ '

“The right of taking fish, at.all usual and accustomed

grounds and stations, is, further secured to said Indians,

in common with all citizens of the Territory, and of erect-

ing temporary houses for the pupose of~curing, together

with the privilege of hunting, gatherin rots. ged berries,

- and pasturing their horses on open and unclaimed lands:

.+.” (Italics ours.) 10 Stat. 1132. . 2,

Since our decision in this case turns upon the proper —

construction ‘of this article of the treaty, and since the

: . supreme court of the United States is the only tribunal

having the power to interpret authoritatively the United

States constitution and treaties made thereunder, we find

it necessary to review: its decisions relating to the con-

struction of Indian treaties. |

a

~

_. All Indian treaties entered into prior to 1871 were con- |

summated pursuant to Art. II, § 2 of the United States

- constitution. Article VI, commonly referred. to yas~ the

“supremacy clause,” provides:

. “This Constitution, and the laws of the United States

which shall be made in pursuance thereof; and all treaties

made, or w shail be made, under the authority of the

United States, shall be the supreme law of the land; and

o

the judges in every state shall be bound a any-

: .

> . 7

ain a anal senha p in an

A-81

thing in the Constitution or laws of any state to the con-

trary notwithstanding.” (Italics ours. ) ae

The supreme cqurt has consistently held that Pidian

treaties have the same force and effect as treaties with

. a nations, and consequently are the supreme law of

and and are binding upon state courts and state

legislatures notwithstanding state laws to the contrary.

Cherokee Nation v. Georgia, 5 Pet. (U:S.) 1, 8 L.Ed. 25; |

.Warcester v. Georgia, 6 Pet. (U.S.) 515, 8 L.Ed. 483;

the

Blue Jacket v. Johnson County Commissioners (Kansas

Iidians), 5 Wall. (U.S.) 737,18 L.Ed. 667; Holden v. -

Joy, 17-Wall. (U.S.) 211, 21 L.Ed. 523; United States

v. New York Indians, 173 U.S. 464, 43 L.Ed. 769, 19 |

S.Ct. 487; Jones v. Meehan, ¥75 U.S. 1, 44 L.Ed. 49, -.

20 ‘S.Ct. 1; Choctaw Nation v. United States, 179 U‘S.

494, 45 L.Ed. 291, 21 S.Ct. 149; United States v: Winans,

198 U.S. 371, 49 L.Ed. 1089, 25. S.Ct. 662. See, also, 4

A.L.R. 1380, 134 A.L.R Fo Am. Jur. 650, § 43, >

27 Am. Jur. 548, ‘ 10. .

In -the Worcester\case, supra, the state of Georgia had

attempted to prosecute a missionary who had gone upon

the Cherokee Indian reservation with the permission of

the tribal‘ council, ‘but contrary to a state statute. The

supreme court, speaking through Chief Justice Marshall,

stated, in part, as follows:

“The Indian nations had always been considered as dis-

tinct, independent, political communities, retaining their

original natural rights, as the undisputed possessors of

the soil, from time immemorfial, with the single exception

- of that imposed by irresistible power, which excluded

them from intercourse with any other European potentate

than the first discoverer of the coast of the particular

region claimed; and_ this was a restriction which those

European potentates imposed on themselves, as well as .

on the Indians. The very term ‘nation,’ so generally applied

-to them, means ‘a people distinct from others.’ The.con-

stitution, by declaring treaties —- made, as well as

those to be made, to be the supreme law of the land, has

adopted and sanctioned the previous treaties with, the

Indian nations, and consequently, admits their rank

i, Say?

Seatag pps RC OTE ELL NO ITN, wen oo

A-82

, among those powers who are capable of making treaties.

The -words ‘treaty’ and ‘nation,’ are words of our own

language, selected in our diplomatic and legishative pro- ~

ceedings, by ourselves, having each a definite and well-

understood meaning. We have applied them to Indians,

as we have applied them to the other nations of the

“ earth; they are applied to all in the same sense.” (Italics

ours. ) |

The statute-was held void, since it conflicted with the

Cherokee Indian treaty, which was declared to be the .- -

- supreme law of the land. o

In the case of Missouri v. Holland, 252 U.S. 416, 64

‘LEd. 641, 40. S.Ct. 382, 11 A.L.R. 984, the supreme | -

court construed a treaty between the United States and

Great Britain which had been executed in ain effort by

the two nations to conserve migratory waterfowl known

-to traverse many parts. of the United States and Canada

in their annual migrations. Subsequently, Congress had -

enacted the migratory bird treaty act of July-3, 1918,

and the state brought a bill in equity to prevent a United

States game warden from attempting to enforce the stat-

ute md regulations made pursuant thereto. The argument

was .advanced bythe state of Missouri that the treaty

infringed upon ‘the constitution, was void as an inter-

ference with the rights reserved to the states by the tenth

amendment, and that the acts of the United States; pur-

suant to the treaty, invaded the sovereign and plenary

right of the state to regulate and conserve wildlife and

contravened its will manifested in statutes. The supreme

court, speaking through Justice Holmes, stated:

“To answer this question it is not enough to refer to

the Tenth Amendment, reserving the powers not delegated

to the United States, because by Article II, § 2, the -

power to make treaties is delegated expressly, and by

Article VI treaties made under the authority of the United

~ States, along with the Constitution and laws of the United

States made in pursuance thereof, are declared the su-

preme law of the land... . .

“As most of the laws of the United States are carried

out within the States and as many of them deal .with

?

? > ; 3 a hee

Li RARE RE

This text is long and has been trimmed here. Open the source document for the complete record.