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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1968
- **Citation:** 391 U.S. 392

## Text

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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 = >
— 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:

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. _ . .

>

“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
.

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 | 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).

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

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 NE ate Bee »
.

(
(
5

~

A-83

matters which in the silence of such laws the State might

regulate, such general grounds are not enough to support
Missouris claim. Valid treaties of course ‘are as bi

ing
within the territorial limits of the States as they are else-

where throughout ‘the dominion of the United States.’

“We are of opinion that the treaty and statute must be
upheld.” [Citing case. ] (Italics ours. ) \ :

(The statute referred to was the act of Congress passed
to implement the treaty?)

In the case of Asakura v. Seattle,’ 265 U.S. 332, 68 .

L.Ed. 1041, 44 S.Ct. 515, the supreme court construed
a treaty with Japan, and stated: |

“A treaty made under the authority of the United States
‘shall be the supreme law of the land; and the judges in
every State shall be bound thereby, any thing in the con-

stitution or laws of any State to the contrary notwith-

standing.’ Constitution, Art. VI, § 2.

“The treaty-makiig power of the United States is not
limited by any express provision of the Constitution, and,
though it does not extend ‘so far as to authorize what the
Constitution forbids,’ it does extend to all prope subjects

of negotiation between our government and other natiorig.

Geofroy v. Riggs, 183 U.S. 258, 266, 267:. In re Ross,
140 U.S. 453, 463; Missouri v. Holland, 252,U.S. 416.
The treaty was made ‘to strengthen friendly relations be-

tween the two nations. As to the 4 covered by it, °
the provision quoted establishes the rule of equality. be- .
tween Japanese subjects while in this country and native

citizens. Treaties for the protection of citizens of one
country residing in the territory of another are numerous,
and make for. good understanding between nations. The
treaty is binding within the State of Washington. [Citing
case.] The rule of equality established by it cannot be
rendered ey in any part of the United States by
municipal ordin

footing of supre as do the provisions of the Consti-

tution and laws pf the United States. It operates of itself

without the aid of any legislation, state or national; and

er OR eT Ne nae
. >
.
e

PPR Oey ar in we

ces or state laws. It stands on the same —

ee,

es .

ABE |
it will be applied and given authoritative effect by the
courts. [Citing cases.] (Italics ours.) . i

A Seattle municipal ordinance, which purported to pre+
. vent citizens of Japan from engaging in the pawnbroking
business, was held invalid, since it conflicted with the
Japanese treaty. . -_

In the case of Nielger-p. Johnson, 279-US. 47, 73 L.Ed.
_ 607, 49 S.Ct. 223, the supreme court “construed a treaty
_ with Denmark and stated: ae |

“Treaties are to be liberally construed so as }to effect
the apparent intention of the. parties. [Citing cases.]
When a treaty provision fairly admits of two construc-
tions, one restricting, the other enlarging rights which
may be claimed under it, the: more liber. interpretation
‘is to be preferred, [citing cases] and as the treaty-making .
power is independent of and superior to the legislative
_ power of the states, the meaning of treaty provisions so
construed is. not restricted by any nécessity of avoiding
possible conflict with state legislation and when so as-
certained must prevail over inconsistent state enactments.”
(Italics ours:) -

The court held invalid an Iowa inheritance tax statute,
which purported to levy a discriminatory tax on property
inherited by a citizen of Denmark, because it violated
the treaty provisions. |

All Indian treaties are construed-by the courts in favor _
of the Indians, in an endeavor to exercise toward them ;
the highest degree of good faith, because of the dominant
position of the United States. Worcester v. Georgia, supra;
Holden v. Joy, supra; Jones v. Meehan, supra; United |
States v. Kagama, 118 U.S. 375, 30 L.Ed. 228, 6 S.Ct.
1109; United States v. Winans, supra: Seufert Bros. Co.
v. United States, 249 U.S.. 194, L.Ed. 555, 39 -S.Ct.
203; United States v. Shoshone Tribe, 304 U.S. 111, 82
L.Ed. 1213, 58 S.Ct. 794; Tulee v. Washington, 315 U.S.
.681, 86 L.Ed. 1115, 62 S.Ct. 862; State v. Arthur, 74
Ida. 251, 261 P.2d 135; State. v. McClure, 127 Mont.
534, 268 P.2d 629. oa

| * [1] Keeping in mind the rules of construction hereto-

. 2
PO te 2 RR a

. .. A-85 5 ee
fore cited, and after reading and analyzi g the above
cited cases, and many others dealing with Inclian treaties
in relation to state legislation enacted under the lice |
power, we have reached the conclusion that the better
reasoned: cases have held state legislation invalid. as to
- Indians where there was a conflict with treaty stip-
tions. | : yer

'. We: are not _ concerned with the plenary right
* vested in the state under its police power to enact general
laws for regulation and conservation of wildlife, as ‘this
_ right has long been.recognized where it does not invade
rights protected by. the United States constitution or a
treaty. Frach v. Schoettler, 46 Wn2d 281, 280 P.2d 1038;
Geer v. Connecticut, 161 U-S. 519, 40 L.Ed. 793, 16
_ S.Ct. 600; Patsone v. ‘Pennsylvania, 232 U.S. 188; 58

L.Ed. 539; 34 S.Ct. 281; State. v. Tice, 69 Wash.. 403,
125 Pac. 168.

- The question presented here is whether the rights re-
served to the Puyallup Indians by the treaty of Medicine -
Creek of 1855, an patticubealy Atticle HI thereof
(quoted above), render the ,Indians*immune from the
operation of the police power herein sought to be invoked
by the state of a when. their treaty rights have
never been extinguished by the United States. 25
U.S.C.A.; Indians, 671, 478(b). ~

Apptllani contends that the state has. the power to
regu ate the time-and manner of taking fish, in spite of a
valid treaty entered. into by the United States and an —
‘Indian tribe, so long as the statutory rules and regulations
are necessary for the conservation of fish, citing Tulee v. ’
Washington, 315 U.S. 681, 86° L.Ed. 1115, 62 §.Ct. 862 .
(reversing State v. Tulee, 7 Wns8d 124, 109 P.2d 280),
and Ward v. Race Horse, 163 US. 504, 41 L.Ed. 244 .
16 S.Ct. 1076. a

The Tulee case involved the right of this state to en-
force a regulation requiring the Yakima Indians to pur-
chase a fishing license. The Yakima treaty of 1859 (12°
Stat. 941) contained a clause similar to the one quoted
above, and the state relied upon its broad police powers.
to uphold the licensing act. We held the act valid { State
‘ vw. Tulee, supia), based largely upon the rationale of

nemeeenen wena ae ps niteswas J

; A-86 nee.

Ward v. Race Horse, supra; New York. ex rel. Kennedy
v. Becker, 241 U.S. 556, 60 L.Ed. 1166, 36 S.Ct. 705,
and four of our earlier, dégisions; Sfate v. Towessnute;
89 Wash. 478, 154 Pat “State v. Alexis, 89 -Wash.
492, 154 Pac. 810, 155 Pac. 1041; State v. Meninock,
]15 Wash. 528, 197 Pac. 641, and -State v. Wallahee,
143 Wash. 117, 255 Pac. 94. The supreme court of the
United States reversed our decision in the Tulee case and
held that, although the act‘was regulatory as well as
revenue producing, the exaction of a fee as a prerequisite
to fishing at the “usual: and accustomed places” could
not be reconciled with a fair construction of the Yakima
treaty.

‘In the course of that opinion, the supreme court, speak-
ing through Justice Black, stated E

£ .

“,.. that, while the treaty léaves the state with power
to impose on Indians, equally with others, such restric-’
tions of a purely regulatory nature concerning the time
and manner of fishing outside the reservation as are nec-
essary for the conservation of fish,’ it forecloses the state
from charging the Indians a fee of the kind in. question
‘here.” (Italics ours.) °° -

. Footnote 3 cites the cases of New York ex rel. Kennedy
' v. Becker, supra, and United States v. Winans, supra.

_ . While we believe that-the language quoted is dictum,
the inference contained. therein, namely,: that the state
may enact regulations necessary for the conservation of
fish and impose them equally upon the Indians who fish
outside the .reservation at their “usual anid accustomed
places,” is not applicable in-the case at bar. This rationale.
originated in the Race Horse and Kennedy cases, supra.
The Race Horse case denied the Bannock tribe of Wyo-
ming its treaty-hunting right, -based upon .a repeal by
implication. The Kennedy.case denied the Seneca Indians
of New York their “treaty” right to fish and hunt, unim-
paired by state regulation, upon land conveyed by. them
to Robert Morris: The supreme court, in these two cases,
held the right was not one existing against the state which
it was bound to respect. These:two cases are, therefore,
distinguishable upon the ground either that the treaty
provisions limited the Indians’ reserved rights or that the

)
?

A-87

‘them.

_ In the case at bar, appellant does not contend that the
treaty rights of the Puyallup Indians were repealed” by

implication in our enabling act. 25 Stat. 676. Cf. Tulee ~
v, Washington, supra; State v. McClure; supra. Nor is it~

at all cleay that the treaty limits the Indians’ reserved
' rights. We conclude ‘that the Race Horse and Kennedy
case§ are not controlling here. |

In the Winans case, the court was concerned with an
easement—not a state regulation. Therefore, the case is not
authority for ‘the proposition that ‘the state may impose
regulations against the Indians under the police’ power.

. However, the rules of construction announced therein are ©

equally applicable in the instant gase.

The argument frequently presented by the states (as
in the case at bar) to the effect that general regulations
“may be imposed against the Indians equally with others,
or in common with citizens, has been rejected by the

courts. Tulee v. Washington, supra; State v. McClure,

supra; State v. Arthur, supra; Makah v, Schoettler, supra.

We also believe that the language previously quoted
from the Tulee case was intended to apply only to the
factual situations in the cases from which that. language
, was taken. This conclusion is jdstified because ‘the su-

preme court, in that case, further stated:

“In determining the scope of the reserved rights of

hunting and fishing, we must not give. the treaty the nar-
rowest construction it will bear. In United States v. Win-
ans, 198 U.S. 371, this court held that, despite the phrase
‘in comnon with citizens of the: Territory, Article III

conferred upon the Yakimas continuing rights, beyond.

those which other citizens may énjoy, to fish at their

usual and accustomed places’ in the ceded area; and in ©

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

conclusion was reached even with respect to places out-

side the ceded area. From the report set out in the record

before us, of the proceedings in the long council at which

. the treaty agreement was reached, we are impressed by

the strong desire the Indians had_to retain the right to
cr

‘

Indians anticipated the future sovereign power to limit

meres = A-88

hunt and fish in accordance with the immemorial cus-
toms of their tribes. It is our responsibility to see that the
terms of the treaty are carried out, so far as possible, in
accordante with the meaning they were understood to
have by the tribal representatives at the council, and in
a spirit which generously-recognizes the full obligation”
of this nation to protect the interests of a dependent
people. United States v. Kagama, 118 U.S. 375, 384;
Seufert Bros. Co. v. United States, supra, 198-199.” (Ital-
ics ours.) |

The courts have generally recognized that the. treaty
right of fishing at “usual and accustomed places” was
given to. the Indians to provide for their subsistence and
as a means for them to earn a livelihood. United States
v. Winans, supra; Makah v. Schoettler, supra; State v. ©
McClure, supra. Applying a liberal—and not-a strained— -
construction to the treaty of Medicine Creek as a whole,
it is our opinion that the Puyallup Indians so understood

_ Article III of the treaty, and that. neither the Indians
nor the United States intended that the. states would or
——~ ould enforce general regulations against the Indians
“equally with others” or “in common with gll citizens of
the Territory” and thereby deprive them of their right to:
hunt and fish in accordance with the immemorial cus-
-toms of their tribes. As we interpret the treaty, we believe
that the phrase “in common with all citizens of the Ter-
_. ritory” merely granted the white settlers and their heirs
and/or grantees a right to fish at these places with the
Indians, but that the Indians thereby reserved their right
to fish at these places irrespective of state regulation, so
long as the right shall not have been abrogated by the
United States. hae | |

No other conclusion would give effect to the treaty,
since to hold. that their right was equal to that, of the
citizens. of the territory would be to say that they were
given no right at all, except that which any citizen sub-
ject to state statutes and regulations may enjoy to fish
at the “usual and accustomed grounds and stations.” ‘This
interpretation would permit the state to abrogate their
treaty rights at will.

We dre convinced that, under the applicable decisions

A-89

of the supreme court of the United States referred to
. herein, the statutes and regulations in the case at bar are

in conflict with the treaty provisions, constitute an inter-:

ference with matters that are within the exclusive scope
of Federal power and, therefore, cannot be held valid
as to the Puyallup Indians, in relation to their right to
fish “at all usual and accustomed fishing grounds and
stations.” ‘Seope

The further contention is made by appellant that, since
_ the Puyallup Indians have alienated certain lands border-
ing upon the Puyallup river (which were located within
the exterior boundaries of the original Puyallup reserva-
tion), they have thus’ lost their treaty right to fish at
those locations. There is nothing to indicate that their
treaty right to fish in-streams flowing through or border-
ing upon the reservation has. been ‘abrogated by the Uni-
ted States. This court, in the case of Pioneer Packing Co.

v. Winslow, 159 Wash. 655, 294 Pac. 557, held that +

the state had no. jurisdiction over the Indians, in so far as
‘their Fog to fish in streams flowing through or bordering
‘upon the reservation: was Secured to them by a treaty
similar to the one above referred to. We are constrained
_-to hold. that alienation of the land which’ was, and is,
_ within the original Puyallup reservation, and which bor-
_ders upon the Puyallup river, does not alter the character
of the right of the Indians to fish upon the river within
the exterior boundaries of the original. Puyallup Indian

reservation, in view-ef the decision in the Pioneer Packing
Co. gease. Cf. United States v. Winans, supra; State v. —

McClure, supra: ‘
That the supreme court still adheres to the views -ex+

pressed by it in the decisions hereinbefore cited, is’ indi-

cated by its refusal to review the recent decision of ‘the
supreme court of Idaho in State v. Arthur, 74 Ida. 251,
261 P.2d 135. That decision is directly in point. In that
‘ case there was involved a prosecution of a-Nez Perce In-

dian for violation of a state statute forbidding the killing .

of deer out of season. The killing was alleged to have
taken place on land ceded to -the Federal government
by the Nez Perce tribe. The defendant demurred: to the
complaint, relying on the provisions of Article III of the
Treaty of 1855, which reserved to the Indians the right

oe

a i ee a ae

er at at eet See

— Cia tie dD TA sh ald Gt OR se Pw HN eS vk es ee penn ln ELIOT EN eR RN BO ocee

at ~~ A-90 © ies
- to hunt on open and unclaimed land. The ‘demurrer was
sustained, and the action dismissed. , = -

é
' The state of Idaho appealed, and its supreme’ court’
affirmed the dismissal. In discussing the relative validity
_ of. the police: power of the state and the treaty-making
power of the United States, the court said:

. “If the right exists in the State to regulate the killing
- of game upon open and unclaimed lands ceded by: the
-, Nez Perce Indians-to the United States, it follows that
such right is to be exercised’ under the police power of
‘this state. Generally stated@the police power under the
American constitutional system has been left to the states.
It has been considered a power inherent in and always.
belonging to the states and not a power surrendered \ by
the respective states to the federal government or by the
federal government restricted under the United States |
Constitution. It is under. this further general propositio
that the State claims. its source and scope of power to
prohibit killing deer during certain times of the year in)

the interests of conservation of wild life. That the State- .

has and may exercise such power generally ‘is not the -
question; this power is limited in the enactment of laws
and regulations to the extent that the same are not re-
pugnant to any constitutional provisions -of.either the ©
State or the Federal Constitution. Is the law and regula-
tion as to a closed season repugnant to rights reserved
under the Treaty of 1855P ,

“The Constitution of the United States does not con-
tain any provisions which expressly limit the police power
of any state; however, it does forbid the- exercise of cer-
tain powers by the state under Art. 1, § 10, of the
Federal Constitution, including the inhibition against any
state passing any laws*impairing the obligation of con-
tracts; moreover, Art. 6, cl. 2 of the Federal Constitution
_expressly declares that the Federal Constitution and the

laws of the United States made in pursuance thereof, and
all treaties made, or which shall be made, shall be the
supreme law of the land, binding upon the judges in every
state notwithstanding anything in the Constitution or .
' laws of: any state to the contrary. Hence the federal gov-
“ernment is paramount and supreme within the scope of

81,124 1953-54 * 16,886
1954 “ 53935 -° 1954-55 18,351.
1955 70,270 _- 1955-56 . 18496 -°
| 1956 56,876 . 1956-57 (Data not yet
aS available )

* (1950 first true downstream migrants planted ) _

** (First réturn of hatchery fish)

The defendants herein had two set nylon ‘nets in the

Puyallup river. The shorter one was 80 feet in length and
20 feet in width’or depth, with-6%4-inch diamond-shaped
webbing. The longer net was the same, except that it was
140 feet in lengtliy The shorter net was anchored at one
end to the bank by means of a rock; and the Jonger* net
was upstream from the shorter one and anchored to the
. bank by means of piling. The opposite ends of each net
were anchored with pilings in the stream, each net run-
ning at right angles to the bank of the river. ,

When fish attempt to migrate upstream, they are
caught and become enmeshed by their gills in the web-
bing: of set nets. Nylon nets are a new device; they are
- practically invisible in the water. Such nets are so con-

structed that they take practically ‘every fish that at-
tempts to go upstream. | SME AE os

q Any obstruction that prevents the anadromous fish from _

escaping to its spawning ground will destroy that particu- -

lar fish run. The regulations in question were enacted to
' prevent such obstructions and other interference with the
fish during the spawning season. I do not think it can be.
seriously questioned that such laws and — for
conservation, as generally applied, aré reasonable.

‘ my

~

‘ ; A-99 ‘
The ‘majority. chose to enlarge the ruling of Tulee v.

andi ss is SUEARASERE IP angele

State, supra, that the state has no right to exact a license . -

fee from the Indians for a privilege guarantéed to them
by the*treaty with the United States. It enlarged this
ruling to a holding that state regulations designed to
conserve the fish may not be enforced. against the In-
dians. The majority opinion does this in spite of the fact
that it recognizes the right of the state to impose such
_ Testrictions ‘outside the reservation, and in spite of the

-fact that the treaty provides that the ‘Tight is to be “en-
joyed in common with all the citizens of the Territory.”

The treaty with the Indians*should be construed in the
light of the conditions and circumstances existing at the
time it was executed. It was never antici ated nor imag-
ined at that time that the present cechaoke

ogical advances

in the method of taking fish would. be devéloped. Nylon .—

net was unknown. The Indians did not possess the techni-
cal knowledge nor materials to manufatture nets in
lengths: sufficient to span an entire stream. The outboard
- motor was nonexistent. ee

To interpret the treaty in a manner that would permit
the Indians to use the best and most advanced techniques
and equipment to the extent that the fish are destroyed
would, in my opinion, go far beyond what was intended
either by the citizens of the Territory or the Indians.
Inherent in the treaty is the implied provision that neither
of the contracting parties would destroy the very right .
and bounty which each sought to share.

The argument is made that if the state may forbid fish- —
ing during certain seasons, it may forbid it altogether,
= the unreasonableness of such a law should be mani-
est. Ses oe : |

As a practical matter, it has been determined that un-
less these conservation -measures are enforced, the fish

ill become extinct and the Indians’ rights will become
worthless. If the Indians will accept the benefit of the
state's activities directed to the preservation and replen-.
, ishing of the supply of fish, they should accept also the
' burden incident. to these measures. Surely it was never
contemplated that the right given to the Indian should

ag

ie atic BS apne Qa ces D SP ot a at hat

A-100

- be used to destroy the means of his enjoying that right—
a destruction that would affect not only the Indians but
also the other citizens entitled to fish the waters of the
state. ie

the ground that the-state had failed to sustain the burden
of proving that the regulation was reasonable and neces-
sary or rather, that the enforcement of the regulation
against the defendants. was reasonable and necessary for
the preservation of fish. In doing so, the court adopted
the holding of Makah v. Schoettler, supra. It is the general
. rule that such a regulation is presumed to be valid and the
burden of proving its invalidity is upon the party chal-
‘ lenging the regulation. The court, however, felt that in
- such a case as this—where the enforcement of the regu-
lation, if not reasonable and necessary, would infringe
‘a treaty right’ of the Indian—the burden should be upon

the state to show that the violation of the regulation by

the Indian threatens the conservation program. I would
uphold the trial court in its disposition of the cause, for

it is true that the state made no attempt to show that
the conservation program was seriously affected by the
fishing activities of the defendants or of the Indians gen

as.

erally. But I would not go further, as the majority

to say that the treaty intended that the state may never ~

interfere with fishing by Indians in their usual and accus-

tomed places, no matter how wasteful and destructive —
hh

: their fishing may be. Such. a “holding is unnecessary to a
decision of the case. Furthermore, I think it is unwar-
ranted under the facts and the law.

For these reasons, I would affirm the trial court's judg-
ment. a . ;

Hu, C. J. Fintey, and Maiery, JJ., concur with
ROSELLINI, J.

FIntey, J. (concarring in the rie) have signed

the concurring opinion written by Judge Rosellini and

‘ join in the views éxpressed therein, but wish to add the

following brief comments: -

-Considering their length and depth, the modern nylon

‘The trial court decided this case against the state on . a

emi!

oe

A-101 ©

nets used by defendants if placed in the river and left

there, as in the instant case, unquestionably would con-
stitute a hazard to the escapement upriver of spawning

salmon and steelhead during certain periods of the year. -

The extent or the degree of the seriousness of the hazard
in terms of conservation and rehabilitation of fish life is a

‘matter that would be subject to: proof, as in any other

case. y

In this connection, it should be noted that the instant
‘ease focuses attention only upon defendants and their _

nets. Considering the matter of conservation and. the
equally, if not more, important matter of rehabilitation of
the fish runs in the rivers and streams of this state in rela-
tion to reasonable police power regulations, the problem
posed would seem to involve not only the question of
the use and effect of the modern nylon nets of defendants,
but the use and_,effect of such nets by numbers of othe;
individuals, including other Puyallup Indians.

The majority opinion ‘states that the constitution of the
United States and the treaties enacted or - eee
pursuant thereto unquestionably ave been held to con-

stitute the supreme or controlling law of. the land. With .

this I agree without any reservation whatsoever. But the
constitution and the treaties enacted pursuant thereto are

basic documents of government. They do not in and of

themselves spell out and ‘govern specifically the myriad’

details and day-to-day implications which may and do
arise in relation to such documents of government. Such
definition enuriciation normally falls within other areas
of social control; i.e., within the proper ambit of the legis-

lature or the judiciary. Under our system of government, _

there should no.longer be any doubt as to (1) the validity
of the doctrine of judicial review, (2) the supremacy of
the judiciary’ in this respect, and (3) that interpretation
and clarificatidn of constitutional, statutory, ‘or i ro-
visions by the judiciary are acceptable and established
principles. The problem in the instant case must be

' viewed in this light, and I think the fundamental question

is the reasonableness of the -police power regulation at-
tempted -by the stat of Washington. . -

Setting aside, merely for the moment, any discussion or

SEB aarp MA a

7 A-102 iis ;

. consideration of constitutional and treaty provisions, there
should be little doubt. that reasonable cline power regu-
lation as an abstract matter would be desirable when, as,

and if, necessary to prevent the depletion or absolute de-
struction of fish life in the ‘rivers and streams of this

_ state. This should be true from.the standpoint of the I
dians, as well as of other resi@gnts of the state. Now, fF ©
we turn back several” decades, in view of the then over-
abundant quantities of fish in the rivers, streams, lakes,

. and other waters of the Pacific. Northwest, it is unlikely
that the parties to the Indjan treaty contemplated any
necessity for scientific conservation and rehabilitation; but,
what would the attitude of the makers of the Indian treaty
have been, if they had considered or had been confront-

- ed with the problem of conservation and rehabilitatiqn?
As to this question, the majority opinion would attribute ~
an abysmal ignorance and lack of intelligence. both to our
constitution makers and to the signatories of the Indian
treaties. The assumption inherent in this, I think, is un-

warranted. | ‘ |
As to the validity of the state regulaton here involved, |
_. I think the inquiry of the court.should be directed to the
intent and purpose of the treaty makers in the same man-
ner’ that judicial inquiry is made respecting intent and
purpose in the process. of interpretation and application
of any provisions of our state’ or Federal constitutions.

The basic purpose of the treaty was to preserve, not to *
‘destroy, the fishing rights of the Indians. As F see the
problem in the case at bar, it is simply one of approach or
orientation regarding (a) the interpretation and applica-
tion of constitutional and -treaty provisions and (b) the |
nature of the judicial function in relation thereto. If even
one judicial eye is kept open’ respecting the fundamental
purpose of the treaty to protect Indian fishing rights, and .
if this purpose is evaluated intelligently in terms of the
settlement and the development of our state which has
taken place most significantly in the last fifty years, then
it seems to me that the state of Washington, as a matter ~
of constitutional r

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0176%3A03. Public record. Not legal advice.