Wahkiakum Band of Chinook Indians v. Bateman

• Decision Date: 31 August 1981
• Docket Number: No. 80-3211,80-3211
• Parties: The WAHKIAKUM BAND OF CHINOOK INDIANS, et al., Plaintiffs-Appellants, v. Mrs. Allen BATEMAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 176

655 F.2d 176

The WAHKIAKUM BAND OF CHINOOK INDIANS, et al., Plaintiffs-Appellants, v. Mrs. Allen BATEMAN, Defendant-Appellee.

No. 80-3211.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 6, 1981.

Decided Aug. 31, 1981.

Stuart F. Pierson, Verner, Liipfpert, Bernhard & McPherson, Washington, D. C., for plaintiffs-appellants.

Paul S. Majkut, Asst. Atty. Gen., Olympia, Wash., Beverly B. Hall, Asst. Atty. Gen., Portland, Or., Robert Nash, Johnson, Marceau, Karnopp & Petersen, Bend, Or., argued for defendant-appellee; William F. Gary, Sol. Gen., James W. Moorman, Washington, D. C., on brief.

Appeal from the United States District Court for the District of Oregon.

Before KENNEDY and ALARCON, Circuit Judges, and HENDERSON, ^* District Judge.

ALARCON, Circuit Judge:

Appellants, the Wahkiakum Band of Chinook Indians, et al., (Wahkiakum) appeal from the district court's grant of summary judgment. ¹ We affirm.

The Wahkiakum sought declaratory and injunctive relief to protect their alleged fishing rights in the Columbia River, naming as defendants officials of the states of Oregon and Washington responsible for regulating the harvesting of fish in the Columbia River. Three other entities, the Confederated Tribes of the Warm Springs Reservation, the Confederated Tribes of the Umatilla Indian Reservation, and the Columbia River Fishermen's Protective Union, and two of its officers (Commercial Fishermen), were allowed to intervene as defendants. The Quinault Indian Nation and the In the district court, appellants asserted a federally protected right to fish the waters of the Columbia River at their usual and accustomed grounds based on (1) the laws, treaties and Constitution of the United States; and in the alternative (2) an aboriginal fishing right. The defendants moved for summary judgment denying the existence of such rights as a matter of law. ³ The district court granted the defendants' motion for summary judgment, finding that the Wahkiakum holds neither a treaty nor an aboriginal right to fish the waters of the Columbia River at the Wahkiakum's usual and accustomed grounds and stations.

United States ² have participated as amici curiae urging affirmance.

On appeal, appellants contend that they are beneficiaries of the treaty between the United States and the Quinaults and Quillehutes which was signed on July 1, 1855, and January 25, 1856 (Treaty of Olympia) ⁴ and that this treaty secures to them the right to exercise Indian fishing rights in the Columbia River. In the alternative, appellants contend that they hold unextinguished aboriginal rights to fish the usual and accustomed grounds of the Wahkiakum. We find no merit in either contention.

RIGHTS UNDER THE TREATY OF OLYMPIA

Appellants tell us that because they affiliated with the signatories of the Treaty of Olympia, they have the right to fish the traditional Wahkiakum grounds in the Columbia River. They contend that the United States Supreme Court, in Halbert v. United States, 283 U.S. 753, 51 S.Ct. 615, 75 L.Ed. 1389 (1931), found that the Chinooks ⁵ had been affiliated with the Quinault under the Treaty of Olympia and that post-treaty affiliation placed the after-affiliated tribes in the same position as they would have been if they had been original signatories to the treaty. They say that, since the treaty states that the Quinault can fish in its usual and accustomed places, the post-affiliated tribes can fish in their own usual and accustomed places. Halbert does state that the Chinook are affiliated with the Quinault under the Treaty of Olympia, but the rights granted thereby to appellants are not so extensive as they suggest. The treaty protects only the fishing grounds of signatories, not of the after-affiliated tribes. An examination of Halbert illuminates the error in appellants' argument.

The Halbert appellants, individuals of varying degrees of Indian blood, asserted rights to an allotment of land on the Quinault Reservation. Among the questions presented in Halbert were: (1) whether the Chehalis, Chinook and Cowlitz tribes were among those entitled to allotments on the Quinault Reservation; and (2) whether residence on the reservation was requisite to the right of allotment. In holding that members of the Chinook are among those who are entitled to the allotment right and that personal residence on the reservation is not necessary, the Court reviewed the history of the Treaty of Olympia, the Executive Order of November 4, 1973, and the 1911 Allotment Act. 283 U.S. at 756-60, 51 S.Ct. at 615-17.

Pursuant to the treaty, a reservation was selected and surveyed, but it proved to be inadequate for the use of the Quinault and Quillehute. The local superintendent reported In discussing their special situation, the Court noted that the Indians seeking allotments were fishermen and referred to Article III of the treaty which secures "the right of taking fish at all usual and accustomed grounds." Appellants contend that this reference to Article III of the treaty of Olympia in Halbert was a recognition by the Supreme Court that the affiliated tribes have a right to fish at their own usual and accustomed grounds even though they do not reside on the Quinault Reservation. ⁹ Thus, appellants tell us, their fishing rights in the usual and accustomed grounds of the Wahkiakum are protected. This ignores the scope and nature of the issues addressed by the Court in Halbert. The Court made clear that although the Indians could not support themselves by living on the reservation, they could do so by fishing there.

                the inadequacy and recommended that all of the fish-eating tribes of the locality be collected on a single reservation, including suitable fisheries.  Upon this recommendation, the President of the United States, acting under the authority of Article VI of the treaty, 6 issued the Executive Order of November 4, 1873, expanding the Quinault reservation "for the use of the Quinault, Quillehute, Hoh, Quit, and other tribes of fish-eating Indians on the Pacific coast."  (emphasis added).  By this order the Chinook and other tribes became affiliated with the Quinault under the treaty.  7 The Act of March 4, 1911, directing the Secretary of the Interior to make land allotments to members of these affiliated tribes, was meant to clarify and affirm their rights to land allotments.  The Halbert Court found that the Act of March 4, 1911 did not require personal residence on the reservation because of the unique circumstances concerning the Indians before the court.  8
                

Appellants also ignore the structure of the treaty and the context in which the affiliation occurred. Only the Quinault and the Quillehute signed the treaty, and therefore only their fishing grounds are protected by Article III. Article VI merely provided the mechanism for consolidation of other tribes on a single reservation with the Quinault. Subsequent affiliation does not, under Article VI, give the Wahkiakum standing as a treaty signatory, nor does it resurrect and protect any fishing rights the Wahkiakum may have had originally. As members of a tribe subsequently affiliated with the Quinault under the treaty, they are, however, entitled to share such rights as are granted to the original signatories by

                the treaty.  10 The members of the Wahkiakum, a tribe of fish-eating Indians of the locality, have the opportunity to take an allotment on the Quinault Reservation and to exercise the fishing rights which accompany that allotment.  Those fishing rights are secured by Article III which protects the rights of the Quinault and any affiliated tribe to fish at all usual and accustomed Quinault fishing grounds.  The Columbia River areas claimed by the Wahkiakum were not traditional grounds of the Quinault and thus are not covered by Article III.  11 Therefore, the Wahkiakum do not hold a treaty-protected right to fish the Columbia River
                

ABORIGINAL FISHING RIGHTS

Appellants, as an alternative basis for claiming fishing rights, alleged that members of the Wahkiakum have fished the Columbia River since the tribe's aboriginal existence and based on this long continuous use of the area they hold an aboriginal right to fish there. Even assuming that appellants can establish a long history of fishing in the Columbia River, that aboriginal right has been extinguished by Congress.

Indian title based on aboriginal possession is a permissive right of occupancy; it may be extinguished by the federal government at any time without any legally enforceable obligation to compensate the Indians. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279, 75 S.Ct. 313, 317, 99 L.Ed. 314 (1955); United States v. Gemmill, 535 F.2d 1145, 1147 (9th Cir.), cert. denied, 429 U.S. 982, 97 S.Ct. 496, 50 L.Ed.2d 591 (1976). The only relevant question is whether Congress intended to extinguish the Indian title. United States v. Gemmill, id., at 1148.

Assuming that the Wahkiakum possessed an aboriginal fishing right, ¹² we find that Congress intended that all Wahkiakum rights, including their fishing right, be extinguished. The Act of August 24, 1912 and its legislative history manifest this congressional intent. The Act provided for payment of a sum of money to the members of the Wahkiakum in settlement of all claims against the United States for the lands described in an unratified treaty signed by the Wahkiakum on August 8, 1851. ¹³ The record shows that this sum was accepted by the then living Wahkiakum.

While it may be argued that this payment was recognized dispossession of tribal lands only and not of other tribal rights, it is clear from the legislative history that Congress believed that all of the tribal rights had already been extinguished. In the unratified treaty of August 8, 1851, the Wahkiakum had attempted to reserve the right to occupy their old homes, to cut timber on the ceded lands and to fish in the Columbia River. ¹⁴ According to Senate Report No. 503...