THE STATE OF WASHINGTON, Respondent, v. ROBERT MOSES et al., Appellants.
No. 40267
En Banc.
April 15, 1971.
79 Wn.2d 104
Charles O. Carroll, Prosecuting Attorney, Paul M. Acheson, Assistant Chief Criminal Deputy, and Darrell E. Lee, Deputy, for respondent.
Slade Gorton, Attorney General, Joseph L. Coniff and William F. Lemke, Assistants, amici curiae.
HALE, J.—Evanescent as the morning mists on the shimmering waters of Puget Sound is the law of Indian treaties. One moment it is there, soon to vanish in a swirl of conflicting, diverging and incomprehensible precedents. Deci-
In a written memorandum opinion, the learned trial judge aptly summarizes the operative events:
This was no crime of stealth, for the Muckelshoot Indians had announced days in advance that members of their tribe would drop their gill nets in the upper reaches of the Green River, and thus force an arrest by which means the Muckelshoots could test their claimed right to fish with gill nets at “their usual and accustomed fishing stations“.
Representatives of the newspapers, television stations and the State Game Department were present to record the event. The first sweep of the defendants’ gill net failed to catch even a single fish, but another attempt, aided by rocks thrown by friends to scare the steelhead into the net, yielded eight steelhead.
The State Game protectors of course arrested the defendants, charging them with illegally fishing with gill nets, contrary to the provisions of
RCW 77.16.060 .The defendants were all convicted in justice court, and this appeal followed. The State is here represented not only by the Prosecuting Attorney‘s office, but by the two Assistant Attorneys General assigned to the Game and Fisheries Department. The defendants are represented by attorneys from the American Civil Liberties Union, from the Legal Services Center, and from the United States Attorney‘s office. It is openly claimed by the prosecution that the United States Department of the Interior is here attempting to “get its foot in the door” so that it may later regulate Indian fishing on the rivers in Washington. This claim is disregarded because it could not affect the result of the case.
The fact that the defendants fished on the day named with a gill net in the Green River and caught steelhead trout is shown on numerous photographs and motion pictures exhibited in court and is not controverted.
Although the facts of the case are uncomplicated, the is-
Failing to make a catch at the Slaughterhouse Hole, the defendants moved their nets upstream about 1 mile to where the New Neely Bridge crosses the Green River. At that place, using a gill net 50 to 60 feet long which was equipped with plastic floats along its top edge and lead weights at the lower edge to keep it upright in the water and which did not span the river there, they made a sweep of about 400 yards. Aided by others who threw rocks into the river to scare the spawning fish into the gill net, the defendants in their third sweep netted eight steelhead trout which they killed with rocks and clubs.
Defendants claimed to be members of the Muckleshoot Tribe. At the places where they had cast their net, the Slaughterhouse Hole and the New Neely Bridge, the Green River runs through privately-owned and county-owned land, and no part of the river or the adjacent lands at either place is within the Muckleshoot Indian Reservation.
The steelhead trout is an anadromous game fish; in early March it swims upstream from salt water to spawn. The steelhead run in Washington‘s rivers is in part artificially created by fish propagation practices of the state.
Defendants were charged with illegally fishing for game fish in violation of
It shall be unlawful for any person to lay, set, use . . . any . . . nets . . . in any of the waters of this state with intent thereby to catch, take or kill any game fish. It shall be unlawful to lay, set or use a net capable of taking game fish in any waters of this state . . . .
Gill-net fishing for steelhead or other game fish, unless
Convicted in justice court and sentenced to 6 months in the county jail with 5 months of the sentence suspended, defendants appealed to the superior court. Convicted again in superior court after trial without a jury, they were sentenced to “30 days, suspended, provided the defendant[s] [do] not fish illegally for a period of one year.” Contending that they are members of the Muckleshoot Indian Tribe and that the Treaty of Point Elliott of 1855 bars the state from prohibiting the tribe and its members from net fishing for game fish in the Green River, defendants bring this appeal. We affirm the judgment on the precise grounds upon which it rests and do not decide the many other issues raised by this record.
As we understand the issues, if, in the reasonable exercise of its sovereign powers, the state as a reasonable regulatory measure may constitutionally prohibit all persons, including treaty Indians, from any net fishing whatever in the Green River, many of the issues raised at trial and on this appeal need not be decided. Stated another way, if, in order to preserve its fisheries, the state can lawfully prevent all net fishing for game fish, then it becomes immaterial whether the Muckleshoot Tribe has any off-reservation fishing rights and whether the defendants were members of that tribe. Should it be the rule, however, that total prohibition of net fishing for game fish is unreasonable and in excess of the state‘s sovereign powers, then it becomes pertinent whether the Muckleshoots made a treaty with the United States; whether such a treaty existed at the time of the arrest of these defendants; whether the treaty gave defendants any rights in the Green River not shared by other citizens; whether these rights, if any, belonged to the tribe alone or could be exercised by individual members of it; whether treaty Indians may cross and occupy privately-owned and publicly-owned lands for the purpose of fishing; and, assuming arguendo the existence of any off-reservation fishing rights in the tribe or these defendants,
Concluding that, because the state had not exceeded reasonable regulatory powers in totally prohibiting net fishing for game fish in the Green River, the court ruled that a total prohibition of net fishing for steelhead would not violate whatever off-reservation fishing rights defendants might have. On this basis, the trial court held that, even though the Muckleshoot Tribe did have off-reservation fishing rights and defendants were members of that tribe, their tribal status did not relieve them from what the court held to be a reasonable and unexcessive regulation. Accordingly, since the state had shown total prohibition of net fishing to be a reasonable regulatory measure in preserving a fishery, the trial court did not specify the kind or nature of the off-reservation fishing rights deriving from the treaty nor did it pass upon or construe the treaty provision that the right of taking fish at usual and accustomed grounds is secured to the Indians “in common with all citizens of the Territory.” Surprisingly little judicial attention, we note, has been given to this rather standard treaty language.
Defendants invoked the Treaty of 1855 concluded with the Indians on the shores of Puget Sound by the United States Government. January 22nd of that year, Isaac I. Stevens, as Governor and Superintendent of Indian Affairs for the Territory of Washington, and his official party acting for the United States met with a number of chiefs, headmen and delegates of certain named tribes and bands of Indians. There, at a place designated in the treaty as Mucklteoh or Point Elliott, they concluded what is described in the treaty as “Articles of Agreement and Convention.” 12 Stat. 927 (1863). Article 1 of the Treaty of Point Elliott, without acknowledging ownership or possessory rights in them, declared that the Indian signatories ceded, relinquished and conveyed to the United States all of their right, title and interest in the lands they had traditionally occupied. Article 2, reserving for the use and occupancy of these Indians designated areas or reservations,
Article 5 is the basis upon which defendants here set up their affirmative defense to the charge of illegal net fishing. It says:
Article V. The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens.
Defendants did not take the witness stand, but, along with other evidence, presented the testimony of Dr. Barbara Lane, an anthropologist, to establish that they were members of the Muckleshoot Tribe of Indians and that the tribe was one of the signatories to the Treaty of Point Elliott. Despite almost continuous objections to this testimony aimed at its hearsay nature, its vagueness and want of materiality and relevance to prove with reasonable certainty the two issues, the court admitted it. Ultimately, over the state‘s strenuous exception, the court entered findings of fact that the Muckleshoot Tribe of Indians was party to the treaty and that defendants were members of the tribe.
These findings were entered despite findings Nos. 9 and 10 in which the court also found that in other litigation both the Muckleshoot Tribe and two of the defendants here, Cecil Moses and Larry V. Maurice, were neither signatories to nor beneficiaries of the treaty.1
An affirmative defense to a criminal charge, therefore, must be proved by one who relies on it. State v. Razey, 54 Wn.2d 422, 341 P.2d 149 (1959); State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963); 29 Am. Jur. 2d Evidence § 156 (1967). If one accused of violating the state‘s fishing laws and regulations claims a treaty exemption to their operation, his claim constitutes an affirmative defense and he has the burden of showing by a preponderance of the evidence the existence of the treaty, that he is a beneficiary of it and that the treaty as a matter of law bars as to him the operation and enforcement of the fishing laws and regulations. State v. James, 72 Wn.2d 746, 435 P.2d 521 (1967); Department of Game v. Puyallup Tribe, Inc., 70 Wn.2d 245, 422 P.2d 754 (1967), aff‘d 391 U.S. 392, 20 L. Ed. 2d 689, 88 S. Ct. 1725 (1968). The affirmative defense must be assessed,
The trial court found that defendants sustained the burden of proving tribal membership in a tribe possessing off-reservation fishing rights. It held that the Muckleshoots were signatories to the Treaty of Point Elliott and that the defendants were beneficial members of that tribe. Although the state challenges these findings, contending that there is a lack of substantial evidence to support them, we do not reach this issue. We do not decide whether the evidence or the law supports either finding because, without more, we think the judgment must be affirmed on the basis upon which it rested, i.e., that, regardless of the treaty or any asserted rights claimed to derive from it, the state could lawfully bar all net fishing for game fish in the Green River. The court‘s conclusion that, even if the treaty be so construed as to accord the Muckleshoot Tribe and its component members off-reservation fishing rights in the Green River, the members and the tribe as an entity could be lawfully subjected by the state to total prohibition of net fishing for game fish in that river is, we think, a sound one. See, Regulation of Treaty Indian Fishing, 43 Wash. L. Rev. 670 (1968).
We point out that the court‘s findings and conclusions did not put to rest many vital issues of Indian fishing law. In State v. Moses, 70 Wn.2d 282, 422 P.2d 775 (1967), this court affirmed the conclusion of the trial court that the Muckleshoot Tribe of Indians descended neither from tribal signatories nor their successors and had no rights under the Treaty of Point Elliott. While this adjudication is perhaps not res judicata of the point, it is entitled to great weight in
Accordingly, we do not now pass upon or decide many of the questions raised directly or by ineluctable inference in this appeal. We do not, for example, construe the language of the treaty that the right of taking fish at usual and accustomed grounds and stations is secured to the Indians in common with all citizens of the territory, nor do we determine the effect of national and state citizenship upon the descendants of treaty Indians.2 In 1924, by act of Congress (Citizenship Act of 1924, 43 Stat. 253), Indians born to American Indians, while retaining tribal or other property, were declared to be citizens of the United States.
Nor need we decide whether the Muckleshoot Tribe of Indians, a federally incorporated and chartered legal entity organized in 1936 in accordance with
The determinative issue before us and upon which an affirmance or reversal depends is whether total prohibition of gill-net fishing for steelhead trout in the Green River was reasonable, and the issue urged by the state that there was insufficient admissible evidence in the record to support the court‘s findings of tribal membership and treaty benefits is not decided. Resolution of these and other issues raised in this review is left to another day—or more happily to a speedier solution by the Congress.
Thus, without reaching the other questions referred to, we come to the one determinative issue: Did the state have the power to prohibit totally net fishing for steelhead trout in the Green River, regardless of the Treaty of Point Elliott of 1855? Under its sovereign power, we think that total prohibition was demonstrated to be reasonably necessary for the preservation of a state fishery resource.
Fish, while in a state of freedom, are the property of the sovereign power in whose waters they may be. In the United States, it is the state and not the United States which is the sovereign power in whose waters the fish are, and the state owns the fish in its sovereign capacity as the representative of and for the benefit of all people in common. 36A C.J.S. Fish § 2 (1961). This state has affirmed the rule of state sovereign ownership over wild animals, wild birds, and fish freely swimming in this state‘s waters. State ex rel. Bacich v. Huse, 187 Wash. 75, 59 P.2d 1101 (1936); Judd v. Bernard, 49 Wn.2d 619, 304 P.2d 1046 (1956);
The wild animals and wild birds in the state of Washington and the game fish in the waters thereof are the property of the state. The game animals, fur-bearing animals, game birds, nongame birds, harmless or song birds, and game fish shall be preserved, protected, and perpetuated, and to that end such game animals, fur-bearing animals, game birds, nongame birds, harmless or song birds, and game fish shall not be taken at such times or places, by such means, in such manner, or in such quantities as will impair the supply thereof.
Tulee v. Washington, 315 U.S. 681, 86 L. Ed. 1115, 62 S. Ct. 862 (1942), reversing State v. Tulee, 7 Wn.2d 124, 109 P.2d 280 (1941), frequently cited for all manner of propositions, seems to support a strong power to regulate the taking of fish vis-a-vis treaty rights, and goes no farther than to hold that the state could not impose a license fee upon treaty Indians exercising a regulated right to fish. The court said:
[W]hile the treaty leaves the state with power to impose on Indians, equally with others, such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here.
(Italics ours.) The exaction of a license fee from treaty Indians to do what the state acknowledged at the time to be lawful under the circumstances was not essential to a state conservation program. While conceding a regulatory power in the state to preserve its fishery resources, Tulee actually went no further than to hold that demanding a license fee of tribal Indians was not a true conservation measure. See
We recognize that the term “reasonably necessary” may to a degree be wanting in definition, but it is a model of precision when compared to much of the law written about Indian treaties. If total prohibition of net fishing for game fish is a reasonably necessary exercise of state conservation practices to preserve or enlarge the steelhead runs on the Green River, then that would resolve all issues raised by appellants and the judgment should be sustained.
Did the state show by competent evidence that total prohibition of net fishing for game fish in Green River was reasonably necessary for preservation of the state‘s fisheries in that river? Clifford Millenbach, Chief of the Fisheries Management Division of the Washington State Department of Game and a professional biologist testifying for the state, said that it was quite likely the steelhead run would be destroyed if net fishing were allowed. He used data from the Puyallup River—which is fed by the White River—as a comparison. He testified that, by actual count beginning in 1941, the state transported between 1,000 and 2,000 steelhead annually around Mud Mountain Dam for the first 14 years of the count. Then, during an interval of an extensive Indian net fishing on the Puyallup, the annual count started falling off until 1958 when it reached a low of 156 steelhead. Since 1958, with the cessation of net fishing, the count has been on the rise. He said that, in his professional opinion, no net fishing should be allowed on the Green River because a net has the capability of literally sweeping
Dr. Loren R. Donaldson, Professor of Fisheries at the University of Washington, testifying for the state, when asked what the term “conservation” means, said, “Well, I think conservation means the maximum sustained yield, commensurate with maintaining the run at the optimum level.” Although a steelhead lays some 4,000 to 5,000 eggs, it is error to expect they will produce several hundred fish. “In actuality,” Dr. Donaldson said, “under about the best of natural conditions, on an average, about all we can expect is a one for one increase. There are instances where it exceeds this, but in the main half the fish have to be reserved for the brood stock or the spawning stock.” Once the anadromous fish have left salt water and entered fresh water, they should be allowed to spawn. A fish entering a river to spawn deteriorates rather rapidly in quality, he said, once it has entered the fresh water.
Dr. Donaldson‘s testimony, in essence, was that a prohibition against net fishing in the Green River would be reasonably necessary for conservation. He said that a gill-net fishery was specially destructive of the run because it is one of the most destructive ways of catching fish; that while a gill net may catch some of the fish it will at the same time entangle and gill mark others which will die from the gill marking. Making a comparison, he said that the gill-net fishery above Bonneville Dam on the Columbia was “a matter of record, where large numbers of fish are destroyed there by being caught in the net and falling out and not being brought in.”
J. E. Lasater, Assistant Director of Operations for the Department of Fisheries, and a biologist, testified for the state. Referring to a net fishery for anadromous fish on the Green River, he said it would conflict with conservation and that “If the net fishery is employed there, it will reduce the stock of both wild and hatchery fish, and also reduce our ability to use the hatchery to its full production potential.” The state, said Mr. Lasater, allows no net fishing
The department had learned from these studies, according to Mr. Lasater, that closures for intervals, or partial closures, in rivers and streams did not work to conserve the runs because, as fish return into fresh water, they tend to delay there in what the biologists call “holding water” and that opening and closing the rivers at intervals by regulation would not allow adequate escapement because the same fish are fished for over and over again in these holding waters. He testified on this:
The second criteria is that it be in what I will call passage of water, and that‘s better explained by saying that as fish come into the river, they tend to delay, and this is what we call holding water.
Closures for escapement don‘t work in holding water for this reason, if you have a closed period, say, three days to allow for escapement and the fish don‘t move, and you re-open the fishery, you‘re fishing the same fish a second time and without an absolutely accurate knowledge of rate of removal and when the fish might migrate, and all, you fish over the same stock time after time, and in fact do not know how to regulate a net fishery to assure a spawning escapement under these conditions.
Fishing should not be allowed on the spawning ground for another reason, he said. Net fishing in the spawning grounds is a harassment to those steelhead which are not actually caught or killed in the nets. Spawning fish, he said, should have a quiet place in which to settle down and spawn. If they are harassed and they are not allowed to lie quietly during the holding period in holding waters, this produces a high prespawning mortality. He testified:
This means that the fish has a certain energy supply to carry them through the spawning act. If during this holding period they are harassed they use up that energy, and the result is what we call pre-spawning mortalities, fish
just not having the energy to carry on through the spawning act. They go for, in the case of salmon, sometimes several months, and with steelhead sometimes as much as six months, with very little food, so you have the effect of disruption of the spawning act, diminishment of spawning success with even the direct death of the fish even though they are not caught.
After giving some 20 pages of essentially scientific explanation of the habits and characteristics of anadromous fish and the effects of net fishing on their propagation, Mr. Lasater testified:
Q. Now, would a net fishery in the Green River for anadromous fish conflict with conservation? A. Yes, it would. You couldn‘t attain your conservation goals with a net fishery in the river. Q. Do you have an opinion as to the effect of the continuation of the net fishery, or do you have an opinion as to the effect of a net fishery on the runs of anadromous fish in the Green River? A. If the net fishery is employed there, it will reduce the stock of both wild and hatchery fish, and also reduce our ability to use the hatchery to its full production potential. Q. Mr. Lasater, in your opinion is it reasonably necessary for conservation to enforce the statutory provision on the use of nets in the Green River upon the defendants in this case? A. Yes, it is. Q. And how about on everyone else? A. Yes, it‘s the wrong gear in the wrong place, and often it would be at the wrong time.
The record thus amply supports the trial court‘s finding No. 19 that:
The use of gill nets in the catching of anadromous fish is destructive of the runs of those fish, since gill nets tend to eliminate certain segments of the runs, and in addition injure and frighten many fish which are not caught. Some stocks of fish would be eliminated if gill nets were allowed in rivers such as the Green River, and past gill net fisheries have reduced some anadromous fisheries almost to the point of destruction.
and conclusion No. 2 that:
The regulation prohibiting the use of gill nets in the rivers of the State of Washington is reasonable and necessary for the preservation of the steelhead fishery.
Judgment affirmed.
HAMILTON, C.J., ROSELLINI and HUNTER, JJ., and HILL, J. Pro Tem., concur.
FINLEY, J. (dissenting)—Although I must disagree with much of the reasoning and the result reached in the majority opinion, I certainly agree with its comment that the law of Indian treaties has suffered from a most disjointed and enigmatic development in published opinions of the courts on this most important subject. This fact of life makes careful and considered analysis of Indian treaty provisions all the more important when treaty provisions are at issue within the confines of a legal controversy. And, certainly, such an issue is present in the instant case.
The appellants herein stand charged and convicted of violating a criminal statute, i.e.,
Under our constitutional framework, courts of law are assigned the function, albeit difficult or arduous, of interpreting and giving legal effect to duly constituted and le-
In disposing of the instant appeal, the majority states:
[W]e come to the one determinative issue: Did the state have the power to prohibit totally net fishing for steelhead trout in the Green River, regardless of the Treaty of Point Elliott of 1855? Under its sovereign power, we think that total prohibition was demonstrated to be reasonably necessary for the preservation of a state fishery resource.
(Italics mine.) The determination that a given state regulation is “reasonably necessary” for the preservation of a state fishery resource cannot be made in a judicial vacuum. Simply stated, the essence of all resource conservation is the recognition that the given natural resource is not sufficiently abundant to survive unrestricted taking by all competing users. And, thus, it is axiomatic that whenever any scarce resource or commodity must be conserved, its distribution among various competing users must, necessarily, be achieved by some system of allocation.
To judge whether any given conservation regulation is reasonably necessary to preserve the resource, one must additionally ask: “Preserve the resource for what uses?” It is, perhaps, analytically useful to restate an obvious fact: natural resources, unlike many scarce commodities, do not lend themselves to satisfactory allocation through a convenient market mechanism which can be said to be reliable and appropriate. Rather, the allocation of natural resources has traditionally fallen within the ambit of state action. I fully support the majority‘s analysis that the state, in the exercise of its sovereign power, has broad authority to regulate its fishery resources, as well as other natural resources within its borders. Indeed, it can normally be said that the state‘s power to allocate its resources among competing users is plenary. This statement is, however, too broad in the instant case because of the fundamental differ-
Article 5 of the Treaty of Point Elliott provides in relevant part:
The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory . . . .
(Italics mine.) 12 Stat. 927 (1863). I have indicated agreement with the majority‘s statement that the above-quoted treaty language has received “surprisingly little judicial attention.” I cannot agree with either the trial court‘s or the majority‘s candid refusal to interpret and effectuate that language as a critical element in determining whether, in the instant case, the questioned state regulation is reasonably necessary for the preservation of a state fishery.
The determinative issue in this appeal, as I view it, is: To what extent, if any, do the treaty provisions, insofar as they secure certain Indian fishing rights, conflict with, and thus supersede,
Unquestionably, Indian treaties are accorded the same force and effect as treaties with foreign nations. Consequently, such treaties are the supreme law of the land and are binding upon state courts and state legislatures. No state law or regulation may impinge upon rights granted or reserved by such treaties. Cherokee Nation v. Georgia, 30
The applicable principles for construing Indian treaty language have been stated by the United States Supreme Court:
It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance 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.
(Italics mine.) Tulee v. Washington, 315 U.S. 681, 684, 86 L. Ed. 1115, 62 S. Ct. 862 (1942). But see New York ex rel. Kennedy v. Becker, 241 U.S. 556, 60 L. Ed. 1166, 36 S. Ct. 705 (1916).5
It is therefore necessary, first, to ascertain, insofar as is
It is relevant to ask the question: What is the probable extent of the Indians’ use of the fishery resource prior to formation of the treaty? The trial court, in the instant case, found that “[t]he steelhead was a food fish taken by the indian prior and subsequent to 1855, . . . .” Indeed, the abundance of fish in the rivers of Puget Sound played a strong role in the physical and cultural environment of the Indian. This dependence has been graphically documented:
The basis of the aboriginal economy was fishing. However, salmon was not merely an important part of life—not a recreation and not solely a means of providing food—it was the heart of a whole way of life. It was the staple article of year-round diet, fresh, smoked, or dried, of which a Chinook man in the treaty days said that “if he was three days without [it] his heart failed him.” It was a major commodity in trade between tribes. Above all, it was a blessing for which the Indians always gave thanks.
(Footnote omitted.) Uncommon Controversy: Fishing
From the earliest known times, up to and beyond the time of the treaties, the Indians comprising each of the intervenor tribes were primarily a fishing, hunting and gathering people dependent almost entirely upon the natural animal and vegitative resources of the region for their subsistence and culture. They were heavily dependent upon such fish for their subsistence and for trade with other tribes and later with the settlers. . . .
During the negotiations which led to the signing of the treaties the tribal leaders expressed great concern over their right to continue to resort to their fishing places and hunting grounds. They were reluctant to sign the treaties until given assurances that they could continue to go to such places and take fish and game there. . . .
(Footnote omitted. Italics mine.) Sohappy v. Smith, 302 F. Supp. 899, 906 (D. Ore. 1969).
The right to retain access to off-reservation fishing locations was critically significant to the Indians. One scholar, in a definitive study, has noted that:
[t]he right provided for in the Pacific Northwest treaties whereby the Indians were to be permitted to resort to their ancient tribal fishing grounds or stations for the purpose of taking fish . . . was at the time of the treaties probably the most important consideration in the minds of the Indian chiefs and headmen. . . .
It is not difficult to appreciate the universal concern of the Indians with regard to this matter since they were so dependent in varying degrees on fish and especially salmon for their daily food.
E. Swindell, Report on Source, Nature and Extent of the Fishing, Hunting and Miscellaneous Related Rights of Certain Indian Tribes in Washington and Oregon 58, 59-60 (1942).
Having observed the purposes of, and extent to which, fishing was immensely important to the early Puget Sound
I thus find it reasonable to conclude that the Indian signatories to the Treaty of Point Elliott intended to reserve unlimited rights to fish in the manner, to the extent, and for the purposes previously employed prior to the treaty. Because these rights were reserved in common with all citizens of the Territory [State], it is next necessary to delineate the meaning of the “in common” language. It must be admitted that this language—which appears in almost every Pacific Northwest Indian fishing treaty—has long troubled legal scholars and the courts. There is a certain attractiveness to the majority‘s resolution of this difficult problem of interpretation. But, I am convinced the majority does not fairly or adequately resolve the complex issues presented.
It would, perhaps, be an easy answer to adopt the position previously advanced by the state: that the language—to fish “in common with all citizens of the Territory“—means merely that Indians have only the same rights as given to all other citizens. Such a reading of the language is, however, premised upon the rationale that the fishing activities and interest of the Indians and the settlers of the territory were similar, if not identical; that the Indian sig-
Such a reading would not seem unreasonable if all history, anthropology, biology, prior case law and the intention of the parties to the treaty were to be ignored. . . .
The policy of the United States to extinguish Indian rights in the Oregon Territory by negotiation rather than by conquest was firmly established in the
Act of August 14, 1848 (9 Stat. 323) which established the Oregon Territory. That act declared that nothing in it “shall be construed to impair the rights of persons or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians, * * *.” The act also extended to the Oregon Territory the provisions of theNorthwest Ordinance of 1787 which provided, among other things, that “good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent.” (1 Stat. 51, Note a)The treaties with which we are here concerned are parts of the result of that policy. They are not treaties of conquest but were negotiated at arm‘s length. The word of the United States was pledged.
(Italics mine.) Sohappy v. Smith, supra at 905. Alternatively, I cannot subscribe to the interpretation assigned to the critical treaty language by Donworth, J., in State v. Satiacum, 50 Wn. 2d 513, 523-24, 314 P.2d 400 (1957):
As we interpret the treaty, we believe that the phrase “in common with all citizens of the Territory” 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.
(Italics mine.)
[j]udicial recognition of the fundamental purpose of the treaty (i.e., the preservation of Indian fishing rights) and judicial recognition of the facts of life relative to conservation and rehabilitation of fish are not inconsistent. Such judicial action is not in derogation and in violation of the Indian treaty, but is in furtherance thereof.
State v. Satiacum, supra at 538 (Finley, J., concurring in the result). State conservation laws are fundamentally laws of allocation as well as of preservation. Resources are conserved so that they will survive for later use. The particular resource involved in this appeal is the steelhead trout fishery on the Green River. From the earliest times, the steelhead has been a highly prized food source. It is a relatively recent development that this species has become a major recreational attraction to sports fishermen,6 and that the state legislature has now removed the steelhead trout from the commercial fishery.7
I would interpret the “in common with” treaty language to grant its beneficiaries an absolute right to fish at usual and accustomed grounds and stations; with such right subject to the state‘s regulatory powers only to the extent
To prevent any misunderstanding which may arise from the immediately preceding statement, it should be stressed that this language is not intended to imply or advocate use of the so-called “indispensible” test for measuring the validity of a state fishery regulation. This court has previously held that:
a requirement that a state regulation must be “indispensible” to the conservation of the fishery before it can be enforced against treaty Indians is neither good law nor presently binding upon the State of Washington.
State v. Moses, 70 Wn. 2d 282, 288, 422 P.2d 775 (1967). Any question as to the proper test for determining the permissible extent of a state regulation in such circumstances, was resolved in Puyallup Tribe v. Department of Game, 391 U.S. 392, 398, 399, 20 L. Ed. 2d 689, 88 S. Ct. 1725 (1968):8
the right to fish at those respective places is not an exclusive one. Rather, it is one “in common with all citizens of the Territory.” Certainly the right of the latter may be regulated. . . . [T]he manner of fishing, the size of the take, the restriction of commercial fishing, and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.
In other words, the “right” to fish outside the reservation was a treaty “right” that could not be qualified or conditioned by the State. But “the time and manner of fishing . . . necessary for the conservation of fish,” not being defined or established by the treaty, were within the reach of state power.
The Puyallup case concluded with the following statement:
Since the state court has given us no authoritative answer to the question [whether the prohibition was reasonable and necessary for conservation], we leave it unanswered and only add that any ultimate findings on the
conservation issue must also cover the issue of equal protection implicit in the phrase “in common with.”
(Italics mine.) Puyallup Tribe v. Department of Game, supra, at 403.
Thus, it is clear that the state may sustain its fishery regulations against treaty beneficiaries’ attack when it can show that its regulations are reasonable and necessary to conserve the fishery:
The burden of proof, once the defendant has established that he is a member of a tribe having a treaty right to take fish at all “usual and accustomed grounds and stations,” is on the state to show that its regulations, which limit Indian fishing rights either as to the time or manner of fishing, are reasonable and necessary to conserve the fishery.
(Italics mine.) Department of Game v. Puyallup Tribe, Inc., 70 Wn. 2d 245, 257, 422 P.2d 754 (1967).
The question which remained unanswered in the Puyallup case, and which remains unanswered in the majority‘s disposition of the instant case is: by what means must the state prove the reasonable necessity of the fishing regulation in question?
The resolution of this question is, in my opinion, the fundamental issue presented in the instant appeal. The question may best be answered by delineating an analytical approach rather than by pronouncing an unwavering “black letter” formula. In cases challenging state conservation regulations as allegedly conflicting with Indian treaty rights, I believe the crucial and requisite judicial function should embrace a 2-step analysis: (1) once the court has determined the quantum or nature of rights originally granted or reserved by such treaty, it must then (2) determine that the state regulation in question fully recognizes and preserves those originally granted or reserved rights in proportionate quantum among entitled users.
In the instant case, I do not believe that the state has, by sufficient proof, demonstrated that the rights granted or reserved to the Indian beneficiaries of the Treaty of Point
In determining whether a state regulation affecting the right of Indians to take fish at their usual and accustomed fishing places is demonstrated to be reasonable and necessary for purposes of conservation, I would require the state to comply with the following standard:
[the state] must so regulate the taking of fish that the treaty tribes and their members will be accorded an opportunity to take, at their usual and accustomed fishing places, by reasonable means feasible to them, a fair and equitable share of all fish which [the state] permits to be taken from any given run.
(Italics mine.) Sohappy v. Smith, 302 F. Supp. at 907. In short, the state, in regulating its fishery resources, must demonstrate that such regulations produce an equitable allocation as among entitled users giving full recognition to the rights of treaty Indians.9 Conversely, the equitable allo-9
cation of any run must give proper recognition to fishery propagation by state efforts. Where, through state efforts and expenditure of state funds a given run has been (1) materially enhanced over its probable natural quantum; or (2) entirely created where no such run previously existed, rights granted by Indian treaties must be measured against the run in its natural, rather than in its enhanced, condition. Thus, of necessity, the reasonableness of any given regulation must depend upon a river-by-river study and evaluation.10
The fundamental necessity and equitable correctness of the above-outlined criteria may be demonstrated by an analysis of conservation policies of this state. The Sohappy court, in describing conservation policies employed by the
Oregon‘s conservation policies are concerned with allocation and use of the state‘s fish resource as well as with their perpetuation. It has divided the regulatory and promotional control between two agencies—one concerned with the protection and promotion of fisheries for sportsmen . . . and the other concerned with protection and promotion of commercial fisheries. . . . The regulations of these agencies, as well as their extensive propagation efforts, are designed not just to preserve the fish but to perpetuate and enhance the supply for their respective user interests.
(Italics mine.) Sohappy v. Smith, supra at 909. I am convinced in the instant case that the state has presented no evidence to indicate its consideration of the treaty rights of appellants as an interest to be recognized or a fishery to be promoted in the state‘s regulatory and developmental program. By this statement, I do not mean to ascribe any bad faith to the state‘s past or present regulatory actions or policies. Rather, I mean only to imply that such proof was not presented at the trial of the instant case. Absent such proof, I do not believe this court can or should determine whether the questioned state regulation is reasonable and necessary for conservation of the Green River steelhead fishery.
My concern herein is well-summarized by Belloni, J., in the Sohappy opinion:
In determining what is an “appropriate” regulation one must consider the interests to be protected or objective to be served. In the case of regulations affecting Indian treaty fishing rights the protection of the treaty right to take fish at the Indians’ usual and accustomed places must be an objective of the state‘s regulatory policy co-equal with the conservation of fish runs for other users. The restrictions on the exercise of the treaty right must be expressed with such particularity that the Indian can know in advance of his actions precisely the extent of the restriction which the state has found to be necessary for conservation.
(Italics mine.) Sohappy v. Smith, supra at 911. In the
Testimony of the state‘s fishery experts at trial is presented fairly and at length in the majority opinion. It will not be restated here, except as is necessary to indicate those respects in which it seems to me that testimony falls short of the proof which should be required upon rehearing. The testimony of Dr. Lauren R. Donaldson, Professor of Fisheries at the University of Washington, indicated his belief that the total prohibition against gill net fishing was reasonably necessary for conservation. He defined “conservation” in the following manner: “Well, I think conservation means the maximum sustained yield, commensurate with maintaining the run at the optimum level.” Dr. Donaldson‘s testimony is, I believe, ambiguous on the critical issue of whether “optimum” conservation as now practiced by the state fairly includes and protects the rights of treaty Indians. Dr. Donaldson did, in fact, admit that there could be a regulated gill net fishery.
The state‘s expert witnesses from the departments of fisheries and game testified more emphatically. Clifford Millenbach, chief of the fisheries management division of the state department of game, testified that prohibition of gill net fishing was reasonably necessary because the nets prevent adequate escapement for spawning. His data, however, was based on Puyallup River experiences. In fact, the appropriate state regulatory agency has apparently made no study of gill net fishing as it might specifically affect the Green River steelhead run.
J. E. Lasater, assistant director of operations for the state
In determining whether the instant regulation (
These questions are not answered by the instant record. I would, therefore, remand this case for further determination of the reasonable necessity of
The above-enumerated factual questions are best resolved by professional fisheries experts. I have the highest respect for, and confidence in, this state‘s appropriate regulatory personnel to provide fair and adequate answers to these inquiries. It is proper for this court to recognize the appropriate limitations on its authority and abilities in this complex legal area, requiring the guidance of technological as well as social expertise:
This court cannot prescribe in advance all of the details of appropriate and permissible regulation of the Indian fishery, . . . “[P]roper anadromous fishery management in a changing environment is not susceptible of rigid predetermination. . . .” The requirements of fishery regulation are such that many of the specific restrictions, particularly as to timing and length of seasons, cannot be made until the fish are actually passing through the fishing areas or shortly before such time.
Sohappy v. Smith, supra at 911. Although not of record herein, there is some indication that the state is keenly interested in, and is resolved to be guided by, the “wording and spirit” of the Sohappy opinion. See Uncommon Controversy, supra, at 200. Thus, it would appear that the remand of this case for further proof as indicated offers both an equitable and reasonable solution to the complex issues presented herein.
For the purposes of clarity on remand, I would resolve, in the instant opinion, several questions left unanswered by the majority‘s resolution of this case. These questions involve (a) whether the Muckleshoot Indians were signatories of the Treaty of Point Elliott; (b) whether a treaty existed at the time of appellants’ arrest herein; and (c) whether the appellants herein are beneficiaries under that treaty. I would sustain the trial court‘s finding that the Muckleshoot Tribe was a party to the treaty and that the
For the reasons stated, I would remand the instant case for further determination of the issues indicated.
NEILL and STAFFORD, JJ., concur with FINLEY, J.
STAFFORD, J. (concurring in dissent)—Justice Finley has referred to the majority‘s failure to come to grips with the fundamental problem of delineating the point at which federally protected Indian fishing rights end and the power of the state to regulate those rights begins under article 5 of the Treaty of Point Elliott.12 That shortcoming is not limited to this case, however. It is to be found in most cases that have dealt with this extremely vexing question.
Unfortunately, we have been too prone to interpret article 5 in terms of the practicalities of today‘s depleted fishery. As a result, we have overlooked the historical background of an agreement reached jointly by the Indians and the federal government in 1855. We have attempted to ascertain the meaning of a treaty executed in 1855 by reference to the exigencies of today rather than by consideration of the circumstances that actually surrounded the contracting parties in 1855. As a result we have approached the task of interpretation from the wrong end.
The meaning attached to the treaty by the contracting parties must be ascertained by the facts and circumstances that surrounded them at the time the treaty was negotiated. Winters v. United States, 207 U.S. 564, 52 L. Ed. 340, 28 S. Ct. 207 (1908). This includes such matters as the original needs and wants of the Indians, Winters v. United States, supra; Conrad Inv. Co. v. United States, 161 F. 829 (1908); and how they satisfied those needs and wants im-
It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance 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.
(Italics mine.)
To say merely that the Indians were a “fish eating” people conveys an incorrect impression. It is clear that they caught fish in order to exist. Not only was fish the mainstay of their diet in the spring and summer, it was dried and stored for winter as well.13
It is illogical to assume the Indians would have agreed voluntarily or knowingly to reduce the area of their occupancy and also to give up the very fish that would make the contemplated reservations livable or adequate. Winters v. United States, supra; United States v. Ahtanum Irr. Dist., 236 F.2d 321 (1956).
It is not necessary, however, to speculate upon the Indians’ need to fish or to guess about the federal government‘s intention that they have the right to meet that need. One need only refer to the minutes of the Treaty Council, January 22, 1855.14
In considering the minutes it must be remembered that Governor Stevens spoke to an assemblage of Indians who understood no English, thus, it was necessary to rely upon interpreters. The Indians were neither masters of a written language nor skilled in matters of diplomacy. Governor
My children, you are not my children because you are the fruit of my loins but because you are children for whom I have the same feeling for from [sic. probably means “as if“] little children the fruit of my loins. You are my children because I will labor for you persistently for all of my life. What will a man do for his children. A man for his own children will see that they are well cared for. He will see that they have clothes to guard them from the wintry season. He will see that they have food to guard them against being hungry. And as for thirst you have your own glorious brooks. But as for food you yourselves now, as in times past, can take care of yourselves.
I have called you my children and as my children I have spoken to you of the food that could save you from hunger and your flowing brooks that could save you from thirst but I give to my own children food and drink and sometimes more. I want that you shall not have simply food and drink now but that you may have them forever . . . .
You understand well my purpose, now you want to know what we desire to do for you. We want to give you houses and having homes you will have the means and the opportunity to cultivate the soil to get your potatoes and to go over these waters in your canoes to get fish. We want more. If you desire to go back to the mountains and get your roots and your berries you can do so and you shall have homes and shall have these rights, the Great Father desiring them.
The Great Father wants you to have a school where you can learn agriculture and to be artisans and to get two blankets when you have one now and learn to take
care of yourself as white people the Great Father wants this in fact. He wants you to have a place where your children can learn to read and write, learn to be farmers and mechanics and also wants you to take your fish and go back to the mountains and get berries. Is this good, don‘t you want this?
(Italics mine.)
As can be seen, Governor Stevens made it abundantly clear that the Indians could fish as they had since the time of their forefathers. His overpowering explanation of the treaty contained no mention of restricting those rights. The speech omitted any reference to “taking fish at usual and accustomed grounds and stations” or fishing “in common with all citizens of the Territory.” These expressions, which have caused so much bitter litigation, first appeared in the written treaty.
It is true the Governor mentioned the two ideas during negotiations with other tribes near Walla Walla, State v. Tulee, 7 Wn. 2d 124, 146, 109 P.2d 280 (1941). But, those negotiations involved different treaties and different tribes, far removed from those with which we are here concerned.
The minutes of the Walla Walla Conference of May 29, 185516 do, nevertheless, cast light on the problem at hand. Governor Stevens told those Indians of the Treaty of Point Elliott and discussed the fundamental needs of the Puget Sound Indians as follows:
I have made treaties with all the Indians on that Sound. They number more than all the tribes present. They have all agreed . . . to go on one reservation. That reservation is only about one-fiftieth part as large as this; they have however, few horses and cattle. They have not three hundred head. They take salmon and catch whale and make oil. They ask for no more land. They think they have land enough. You will be farmers and stock raisers and wool growers and you need more.
(Italics mine.)
It is evident that the Governor did not seriously consider that the Puget Sound Indians were to be farmers and stock 16
The Governor‘s statements were made at a time when the northwest was a wilderness. They were made at a time when Indians and white men alike hunted and fished as they desired without let or hindrance from the federal or territorial governments. The regulation of fish and game was neither known nor dreamed of. The Indians had fished in the area since time immemorial. The catching of fish was necessary for the sustenance of themselves and their families. Neither the Governor nor the Indian chiefs could possibly have visualized present day restrictions. They entered into the treaty under conditions as they existed at that time. Thus, we must interpret the treaty and the rights of the Indians in light of what they then knew about need for regulation, keeping in mind that both parties planned that the needs and abilities of the Indians would obviously grow in the future.17
If the Governor and the federal government were sincere in their negotiations and if the promises were made in good faith, as I am sure they were, then all of the facts connected with the making of the treaty should be considered in arriving at the intent of the parties. This would of necessity include Governor Stevens’ explanation made to a people who had no written language and whose only knowledge of the terms of the treaty was that imparted to them by the Governor and the interpreter employed by the United States. As we said in State v. Edwards, 188 Wash. at 471, quoting from Jones v. Meehan, 175 U.S. 1, 44 L. Ed. 49, 20 S. Ct. 1 (1899):
“In construing any treaty between the United States and an Indian tribe, it must always . . . be borne in mind that the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all the forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.
In retrospect, it seems almost irony that Governor Stevens had been instructed to negotiate a treaty that would,
Regrettably, article 5 has caused the very misunderstanding it was intended to avoid. The economic and socio-legal interests of competing users of the depleted fishery have faced an ever-widening gulf.
Justice Finley has suggested one possible means of threading our way through the quagmire that has evolved from an assertion of competing rights on an “all or nothing” basis. He suggests that both the state of Washington and the Indians have rights that must be recognized. The Indians, however, have federally protected treaty rights that must receive definitive consideration in the exercise of any state regulatory measure. He suggests further that problems peculiar to each river require that the matter be resolved on a river-by-river basis.
There is another approach to this vexing problem. Usually federal treaties are handled on a federal level. This federal treaty should be dealt with similarly to insure uniform interpretation and application.
Although Congress has refrained from doing so in this instance, it has the power to abrogate or change treaty rights by passing a clear and express act which is of such a nature that the treaty and the act cannot in any reasonable view stand together. Stephens v. Cherokee Nation, 174 U.S. 445, 43 L. Ed. 1041, 19 S. Ct. 722 (1899); Seneca Nation of Indians v. Brucker, 262 F.2d 27 (1958); Nicodemus v. Washington Water Power Co., 264 F.2d 614 (1959); United States v. 5,677.94 Acres of Land, More or Less, of Crow Reservation, 162 F. Supp. 108 (1958). Thus, Congress has the power to regulate Indian fishing rights.
Seneca Nation of Indians v. Brucker, supra; Nicodemus v. Washington Water Power Co., supra; and United States v. 5,677.94 Acres of Land, More or Less, of Crow Reservation, supra, all involve the federal government‘s use of eminent domain to acquire Indian property rights. In each
It is suggested that the federal government has the power to acquire the Indians’ treaty fishing rights by eminent domain. To do so, however, the federal government would be required to pay just compensation to those tribes having such federally protected fishing rights.
This procedure would eliminate the problem for all competing interests. All would be placed on an equal footing, subject to the same regulations. The festering sore of misunderstanding would be removed.
TIME OIL COMPANY, Appellant, v. THE STATE OF WASHINGTON et al., Respondents.
Jones, Grey, Kehoe, Bayley, Hooper & Olsen, W. C. Anderson, and Clinton F. Raymond, Jr., for appellant.
Notes
“10. The Muckleshoot Tribe of Indians has twice filed suit in federal courts alleging that they are not ‘treaty indians,’ Duwamish et al Indians v. U.S., 79 C.Cls. 530 (1934), cert den 295 U.S. 755, and Muckleshoot Tribe of Indians v. U.S., Indian Claims Commission Docket No. 98.”
It has frequently been said that treaties with the Indians should be construed in the sense in which the Indians understood them. But it is idle to suppose that there was any actual anticipation at the time the treaty was made of the conditions now existing to which the legislation in question was addressed. Adopted when game was plentiful—when the cultivation contemplated by the whites was not expected to interfere with its abundance—it can hardly be supposed that the thought of the Indians was concerned with the necessary exercise of inherent power under modern conditions for the preservation of wild life.Kennedy, 241 U.S. at 563-64. The statements in Tulee and Kennedy are not irreconcilable. Rather, as is later developed in this dissent, the crucial judicial function required in cases wherein state regulations are alleged to conflict with Indian treaty rights must, of necessity, include a 2-step analysis: (1) determination of the quantum of rights originally granted or reserved by such treaties; and (2) determination that a state regulation, mandated by the exigencies of modern resource conservation, properly recognize and preserve those rights originally granted or reserved, in proportionate quantum.