Department of Game v. Puyallup Tribe, Inc., 38611

Decision Date12 January 1967
Docket NumberNo. 38611,38611
Citation422 P.2d 754,70 Wn.2d 245
CourtWashington Supreme Court
PartiesDEPARTMENT OF GAME of the State of Washington and the Department of Fisheries of the State of Washington, Respondents, v. The PUYALLUP TRIBE, INC., a corporation et al., Appellants.

Arthur Knodel, Tacoma, Malcolm McLeod, Seattle, for appellants.

John J. O'Connell, Atty. Gen., Joseph L. Coniff, Mike Johnston, Asst. Attys. Gen., Olympia, for respondents.

Edwin L. Wiesl, Jr., Asst. Atty. Gen., Roger P. Marquis, Edmund B. Clark, Land and Natural Resources Division, United States Department of Justice, Washington, D.C., amici curiae.

Arthur Lazarus, Jr., David E. Birenbaum, Washington, D.C., Theodore H. Little, Clarkston, Association on American Indian Affairs, Inc., amici curiae.

Alvin J. Ziontz, Michael H. Rosen, Seattle, T. J. Jones, III, State of Idaho, Fish & Game Department, Boise, Idaho, American Civil Liberties Union, amici curiae.

HILL, Judge.

The Department of Game of the State of Washington and the Department of Fisheries of the State of Washington, hereinafter called the Departments, brought this declaratory judgment action 1 for the purpose of determining whether certain named individuals had, as members of the Puyallup Indian Tribe, any privileges or immunities from the application of state conservation measures.

The defendants asserted rights under Article 3 of the Treaty of Medicine Creek (10 Stat. 1132) between the United States and various Indian tribes including the Puyallups. This treaty was signed December 26, 1854; ratified by the United States Senate March 3, 1855, and proclaimed by the President of the United States April 10, 1855. This treaty was the first of a group of eleven treaties negotiated with the Indian Tribes of the Pacific Northwest between December 26, 1854 and July 16, 1855.

By the treaty, the Puyallup Indians ceded, relinquished and conveyed to the United States 'all their right, title, and interest in and to the lands and country occupied by them,' in return for which they received a reservation and certain rights, including those named in Article 3 which reads:

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, 2 and of erecting temporary houses for the purpose of curing, together with the privilege of hunting, gathering roots and berries, and pasturing their horses on open and unclaimed lands: Provided, however, That they shall 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.

The trial court concluded that the Puyallup Tribe no longer existed as an entity and that its members no longer had any rights under the treaty; that there was no longer any Puyallup Indian Reservation and, hence, that the Puyallup Indians had no fishing rights within what had been the reservation; and that

It is reasonable and necessary that state conservation, rules and regulations be uniformly applied to all citizens on an equal basis. * * * (Finding No. 4)

Consequently, the trial court permanently enjoined the defendants and all members of the 'Puyallup Tribe' from fishing in the Puyallup River watershed and Commencement Bay in any menner contrary to the laws of the State of Washington, or contrary to the rules and regulations of the Departments.

From that judgment, the Puyallup Indian Tribal Council appeals.

It is first urged that the state Departments are not entitled to seek relief under the Uniform Declaratory Judgments Act (RCW 7.24.010 et seq.). Basically, the contention is that the issues here before us for determination should be raised in individual criminal actions brought against Indians who violate the food fish and game fish conservation laws found in Titles 75 and 77 RCW, or the regulations promulgated thereunder.

A multiplicity of arrests for violation of fishing regulations, which involve the jailing and detention for considerable periods of individuals and consequent hardship to them and their families, seems to us the unnecessarily hard way of determining whether they have immunity from certain fishing regulations.

Since the Indians who claim immunity from these regulations claim them under treaties between the United States and various Indian tribes, it seems to us that the state Departments acted wisely in seeking an interpretation of those treaties and a delineation of the rights of the members of the different tribes in a series of actions under the Uniform Declaratory Judgments Act.

On the merits, both parties assume an extreme and adamant position.

The Departments take the position that the Indians never had, as against the United States, any right to the 'use and occupancy' of any land; that they were and are a conquered people without right or title to anything. Having nothing to cede, there was no consideration for any promises made to them, and there is no necessity to respect those promises even though they were labeled 'treaties.'

Our answer 3 is that regardless of whether treaties with Indian tribes were necessary, they were deemed desirable by the United States and those entered into by it cannot be repudiated by this state or its courts.

The case of Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 273, 75 S.Ct. 313, 314, 99 L.Ed. 314, 317 (1955), on which the Departments rely, points out specifically that there were no treaty rights involved and says:

This is not a case that is connected with any phase of the policy of the Congress, continued throughout our history, to extinguish Indian title through negotiation rather than by force * * *

Nor is there anything in Organized Village of Kake v. Egan, 369 U.S. 60, 72, 82 S.Ct. 562, 569, 7 L.Ed.2d 573, 581 (1962), also relied upon by the Departments, which contains any suggestion that the United States is now about to allow a state to repudiate any treaty which the United States has made. The opinion does point out that,

In 1871 the power to make treaties with Indian tribes was abolished, 16 Stat. 544, 566, 25 U.S.C. § 71 * * *

and that there were no treaties with Alaska Indians. It should also have pointed out that the same enactment provided that 'no obligation of any treaty lawfully made and ratified' with an Indian tribe prior to March 3, 1871, was 'invalidated or impaired.' The opinion does not directly or by inference imply that the United States was just playing 'Treaty' with the Indians when the Senate ratified and the President proclaimed the treaty here in question. It was not the Indians, but the United States and the white settlers in the Territory of Washington who were asking for this and other treaties in 1854 and 1855.

The Departments further urge that if the Puyallup Indians ever had any fishing rights as such, their rights in the reservation area long ago ceased to exist; that the members of the Puyallup Tribe are all citizens of the United States and of the State of Washington and have no rights different from any other citizen.

The defendants, on the other hand, urge that they have rights under the Medicine Creek Treaty to fish on the reservation and at other 'usual and accustomed grounds and stations' at any time and with any type of gear they choose and that they do not have to comply with any regulation, or if they have to recognize any regulation it must be 'indispensable' to the preservation of the fishery. (This last petition is posited on Maison v. Confederated Tribes of the Umatilla Indian Reservation, 314 F.2d 169 (9th Cir.1963), which will be discussed later in this opinion.)

The observation of Mr. Justice Black in Tulee v. State of Washington, 315 U.S. 681, 684, 62 S.Ct. 862, 864, 86 L.Ed. 1115, 1119 (1941), is still apropos:

We think the state's construction of the treaty is too narrow and the appellant's too broad; * * *

The members of the tribes signatory to the various treaties do have certain special fishing rights thereunder, notwithstanding the contention of the state. And the members of such tribes are subject at least to regulations which are necessary for the preservation of the fishery, notwithstanding their contentions to the contrary.

We will now consider whether the trial court erred in reaching the conclusion:

There is no presently existing Puyallup Tribe of Indians which succeeds in interest to the original Puyallup Indian Tribe which was signatory to the Treaty of Medicine Creek. (Conclusion of Law No. 1)

To support this conclusion, the trial court made findings Nos. 10 and 11.

While some of the defendants have participated in the affairs of a federally organized group known as the 'puyallup Tribe', this organization is in essence no different than the Italian-American Club or the Sons and Daughters of Norway, or like social groups. Over the years, the defendants have blended themselves into the dominant Western-European society to such an extent that they are indistinguishable from all other citizens of this state except for the fact that in some instances individuals may be able to trace their blood line ancestry to a member of the aboriginal tribe of Puyallup Indians. The activities of the defendants, insofar as they are related to the federal organization known as the 'Puyallup Tribe', have been limited to considering problems with regard to membership, operation of a cemetary (sic), the disposition of certain trust funds remaining on deposit for their benefit in the Treasury of the United States and the present assertion of their claimed immunities from state conservation measures.

The federal organization known as the 'Puyallup Tribe' maintains no courts, has no policemen, and occupies no given land area. In fact, the lands over which the defendants assert exclusive jurisdiction now comprise an integral part of the City of Tacoma. (Finding No. 10)

In 1929 the United States Government...

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