Puget Sound Gillnetters Ass'n v. U.S. Dist. Court for Western Dist. of Wash.

• Decision Date: 24 April 1978
• Docket Number: 77-3654 and 77-3655,77-3209,Nos. 77-3129,77-3208,s. 77-3129
• Citation: 573 F.2d 1123
• Parties: 8 Envtl. L. Rep. 20,487 PUGET SOUND GILLNETTERS ASSOCIATION et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF WASHINGTON, Respondent, United States of America et al., Real Parties in Interest. COLUMBIA RIVER FISHERMEN'S PROTECTIVE UNION, INC., et al., Petitioners- Appellants, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF OREGON, Respondent, and United States of America et al., Real Parties in Interest-Appellees. UNITED STATES of America et al., Plaintiffs-Appellees, v. STATE OF WASHINGTON et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1123

573 F.2d 1123

8 Envtl. L. Rep. 20,487

PUGET SOUND GILLNETTERS ASSOCIATION et al., Petitioners, v. UNITED STATES DISTRICT COURT FOR the WESTERN DISTRICT OF

WASHINGTON, Respondent,

United States of America et al., Real Parties in Interest.

COLUMBIA RIVER FISHERMEN'S PROTECTIVE UNION, INC., et al., Petitioners- Appellants, v. UNITED STATES DISTRICT COURT FOR the DISTRICT OF OREGON, Respondent, and United States of America et al., Real Parties in Interest-Appellees.

UNITED STATES of America et al., Plaintiffs-Appellees, v. STATE OF WASHINGTON et al., Defendants-Appellants.

Nos. 77-3129, 77-3208, 77-3209, 77-3654 and 77-3655.

United States Court of Appeals, Ninth Circuit.

April 24, 1978.

Charles E. Yates (argued), Douglas M. Fryer (argued), Joseph T. Mijich (argued), of Moriarty, Long, Mikkelborg & Broz, Seattle, Wash., for petitioner.

James W. Moorman, Acting Atty. Gen., Washington, D. C., Kathryn A. Oberly, Atty., (argued) Dept. of Justice, Washington, D. C., for respondent.

James M. Johnson, Asst. Atty. Gen. (argued), Olympia, Wash., for defendant-appellant.

Appeals from the United States District Courts for the Western District of Washington and the District of Oregon.

Before GOODWIN, WALLACE, and KENNEDY, Circuit Judges.

GOODWIN, Circuit Judge:

These consolidated appeals are the latest in a series of efforts by agencies of the State of Washington and various associations of non-Indian fish catchers to overturn decisions of the District Courts of Oregon and of the Western District of Washington apportioning between treaty Indians and others the right to take fish. See United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974), aff'd, 520 F.2d 676 (9th Cir. 1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); Sohappy v. Smith, 302 F.Supp. 899 (D.Or.1969); United States v. Oregon, 529 F.2d 570 (9th Cir. 1976). The geographic areas covered by these appeals are Puget Sound, the Washington coast south to and including Gray's Harbor, and the Columbia River.

I Background

Litigants reached an agreement concerning the Columbia River, and that agreement was incorporated in a final decree of the District Court, Order of February 28, 1977, United States v. Oregon. That case retains minor problems of enforcement.

Agencies of the State of Washington and various of its constituencies continue to attack the judgment in United States v. Washington. Accordingly, we will again set forth the treaty basis of that decision and reaffirm its validity. The state's extraordinary machinations in resisting the decree have forced the district court to take over a large share of the management of the state's fishery in order to enforce its decrees. Except for some desegregation cases (see Morgan v. Kerrigan, 530 F.2d 401 (1st Cir.), cert. denied sub nom. McDonough v. Morgan, 426 U.S. 935, 96 S.Ct. 2649, 49 L.Ed.2d 386 (1976); Morgan v. McDonough, 540 F.2d 527 (1st Cir. 1976), cert. denied, 429 U.S. 1042, 97 S.Ct. 743, 50 L.Ed.2d 755 (1977) ), the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century. The challenged orders in this appeal must be reviewed by this court in the context of events forced by litigants who offered the court no reasonable choice.

When Europeans first came to the Northwest, they found it occupied by many bands of Indians, who together exercised superficial control over the entire territory. The Indians knew nothing of English land tenure, but they were destined to learn.

For most tribes living along Puget Sound, the Pacific Coast, or a major stream, the yearly runs of anadromous fish were central to their economies and their cultures. As settlement from the East increased during the 1840's and 1850's, the white settlers created political pressure to limit Indian occupation to designated lands so that more land would be available to the settlers for enclosure and exclusive possession. Under instructions from the federal government, Governor Isaac Stephens of Washington Territory negotiated a series of treaties in 1854-55 to achieve settlement goals.

The treaties followed a pattern, the Treaty of Medicine Creek, 10 Stat. 1132 (1854), being typical. In article II the Indians reserved to themselves certain lands for reservations, and in article III the government further guaranteed them the right to continue taking fish at their usual and accustomed sites off the reservation, in common with all citizens of the Territory. This court has previously construed these clauses in earlier chapters of this litigation. We held that article II reserved an exclusive right to fish on the reservation and that article III established something analogous to a cotenancy, with the tribes as one cotenant and all citizens of the Territory (and later of the state) as the other. United States v. Washington, 520 F.2d at 685, 690. It is crucial to remember that these treaties did not grant the tribes anything; rather, the tribes granted the United States a vast expanse of land, reserving to themselves certain interests in it and in its profits a prendre. ¹ The negotiations and treaties show that the right to take fish was to the Indians one of the most important rights reserved.

These rights were reserved, not by the individuals who happened to be alive in 1854 or 1855, but by tribes, with which the United States treated as sovereign entities. ² See United States v. Washington, 520 F.2d at 688. The sovereignty of Indian tribes was the legal foundation for the relations between the United States and the Indians from the origins of this country, even though tribal sovereignty was viewed as the limited sovereignty of a domestic dependent nation. Under the Constitution, only the United States may deal with an Indian tribe. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17-19 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557-60 (1832). All Indians are now citizens of the United States, 8 U.S.C. § 1401(a)(2), and the United States has not made treaties with the tribes since 1871, 25 U.S.C. § 71. As we noted in United States v. Washington, 520 F.2d at 685, tribal sovereignty does not fully explain current Indian status. Yet, as we also noted there, the concept of tribal sovereignty remains necessary to explain the extent of the tribes' reserved rights under the treaties, which have not been affected by the changes.

The Supreme Court has recently indicated that tribal sovereignty continues as a necessary part of Indian law. In McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973), it overturned a state tax on income earned by a reservation Indian from reservation sources. In doing so it noted that tribal sovereignty provides a backdrop against which treaties and statutes must be read. The Indian claim to sovereignty long predates that of the United States or of any state. Indians on reservations remain a separate people, exempted from many laws of the state within whose borders they live. 411 U.S. at 172-73, 93 S.Ct. 1257. In Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), the Court upheld a hiring preference for Indians in Bureau of Indian Affairs positions. It noted that the preference was political, not racial, 417 U.S. at 553 n.24, 94 S.Ct. 2474 given to "members of quasi-sovereign tribal entities," 417 U.S. at 554, 94 S.Ct. at 2484. In United States v. Mazurie,419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), the Court upheld the power of Congress to delegate to an Indian tribe the right to regulate the sale of liquor on non-Indian land within an Indian reservation. The Court specifically rejected the Tenth Circuit's holding that Indian tribes are simply voluntary associations of private citizens, citing Worcester and McClanahan among other cases. 419 U.S. at 557, 95 S.Ct. 710.

Most recently, the Court held unanimously that a conviction by a tribal court does not bar federal prosecution for the same offense, because the tribal and federal courts are arms of different sovereigns. "Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." United States v. Wheeler, 435 U.S. 313, 322-323, 98 S.Ct. 1079, 1086, 55 L.Ed. 303 (1978).

II Equal Protection

The state and the non-Indian fish catchers argue that to treat Indian fish catchers differently from non-Indians in allocating fishing opportunities and determining fishing regulations is a patent violation of basic equal protection principles. The Washington state courts have accepted this argument. See Washington State Commercial Passenger Fishing Vessel Association v. Tollefson, 89 Wash.2d 276, 571 P.2d 1373 (1977). Yet the most obvious conclusion from this background is that "equal protection" is an issue in this case only as it limits the state's regulation of Indian fishing in those areas where the state has a right to regulate. Comparisons between the numbers of treaty and nontreaty fishers, or the quantity of fish each category has an opportunity to take, are simply irrelevant under the law. The treaty tribes reserved their preexisting rights to fish, and they continue, as quasi-sovereign entities, to hold those reserved rights.

As we pointed out in United States v. Washington, 520 F.2d at 685, the treaties established something analogous to a cotenancy in the off-reservation fishery. ³ The treaty fishers derive their rights from one of the cotenants, the tribes. The nontreaty fishers derive their rights from the other, the state as the successor to the United States. The population-head-count disparity is the unremarkable result of normal principles of property law applied to changing numbers within cotenant classes.

Treaty fishers fish under the regulation of one quasi-sovereign, nontreaty fishers under the regulation of another. The rights of each sovereign are reserved or granted...