Confederated Tribes of Chehalis Indian Reservation v. State of Wash.

• Decision Date: 06 September 1996
• Docket Number: Nos. 95-35370,95-35371,s. 95-35370
• Citation: 96 F.3d 334
• Parties: 96 Cal. Daily Op. Serv. 6678, 96 Daily Journal D.A.R. 10,923 CONFEDERATED TRIBES OF CHEHALIS INDIAN RESERVATION, Plaintiff-Appellant, Cross-Appellee, and Shoalwater Bay Indian Tribe, Plaintiff-Appellant, v. STATE OF WASHINGTON; William R. Wilkerson, individually and as Acting Director of the State of Washington Department of Fisheries; Frank R. Lockard, individually and as Director of the State of Washington Department of Game; Washington State Game Commission, Defendants-Appellees, and UNITED STATES of America, Plaintiff-Appellee, v. STATE OF WASHINGTON, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 334

96 F.3d 334

96 Cal. Daily Op. Serv. 6678, 96 Daily Journal

D.A.R. 10,923

CONFEDERATED TRIBES OF CHEHALIS INDIAN RESERVATION, Plaintiff-Appellant, Cross-Appellee, and Shoalwater Bay Indian Tribe, Plaintiff-Appellant, v. STATE OF WASHINGTON; William R. Wilkerson, individually and

as Acting Director of the State of Washington Department of

Fisheries; Frank R. Lockard, individually and as Director

of the State of Washington Department of Game; Washington

State Game Commission, Defendants-Appellees, and UNITED STATES of America, Plaintiff-Appellee, v. STATE OF WASHINGTON, Defendant-Appellee, Cross-Appellant.

Nos. 95-35370, 95-35371.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 6, 1996.

Filed Sept. 6, 1996.

Harold Chesnin, Mathews, Garlington-Mathews & Chesnin, Seattle, Washington; Jeffrey S. Schuster, Evergreen Legal Services, Seattle, Washington; for the plaintiffs-appellants-cross-appellee.

Jay D. Geck, Assistant Attorney General, Robert K. Costello, Sr. Assistant Attorney General, Olympia, Washington; Richard Reich, Office of the Reservation Attorney, Taholah, Washington; Jacques B. Gelin, United States Department of Justice, Washington, D.C., for the defendants-appellees.

Appeals from the United States District Court for the District of Western Washington, Barbara J. Rothstein, District Judge, Presiding. D.C. Nos. CV-83-00117-BJR, CV-70-9213-BJR.

Before WRIGHT, BEEZER and O'SCANNLAIN, Circuit Judges.

OPINION

EUGENE A. WRIGHT, Circuit Judge:

This case involves claims by two Indian tribes in Southwest Washington to off-reservation fishing rights. The Shoalwater Bay Tribe and the Confederated Tribes of the Chehalis Indian Reservation have no such rights by treaty, but they assert that they have implied fishing rights arising from the executive orders creating their reservations. They also argue that they are entitled to the treaty fishing rights of the Quinault Tribe. Finally, they argue that they have extant fishing rights based on Chehalis aboriginal title. Allied against the Tribes on appeal are the United States, the State of Washington and the Quinault Tribe.

In its findings of fact and conclusions of law, the district court concluded that the Tribes' claims were not well-founded. We agree and affirm the judgment of the court. We also affirm the court's judgment on the question of the boundaries of the Chehalis Reservation.

BACKGROUND

A. Introduction

The Confederated Tribes of the Chehalis Indian Reservation ("Chehalis Tribe") occupy a reservation at the confluence of the Black and Chehalis Rivers in Southwest Washington. This reservation was created by secretarial order in 1864. Tribal membership includes persons descended from the Upper Chehalis Indians, and may also include descendants of the Lower Chehalis, Cowlitz and other tribes of Southwest Washington. The Shoalwater Bay Indian Tribe occupies a reservation on the north side of Willapa Bay (formerly Shoalwater Bay) on the Washington coast. The members are descendants of a small group of Indians of Chinook and Lower Chehalis ancestry who settled on the reservation, which was created by executive order in 1866.

B. Historical Background

1. Tribal Pre-Treaty History

The Chinook, Chehalis and Cowlitz Indians lived in Southwest Washington for centuries before the arrival of white settlers. They were considered "fish-eating" Indians; that is, their livelihood depended on fish and seafood. Halbert v. United States, 283 U.S. 753, 757, 51 S.Ct. 615, 616, 75 L.Ed. 1389 (1931). The Upper Chehalis Indians were primarily river fishermen, with principal fisheries in the Chehalis River drainage system. The Lower Chinook and Lower Chehalis fished both in marine waters and in rivers and streams near the coast.

2. The Dart Treaties

By the 1850's, settlers had begun to encroach upon tribal lands. In 1851, Dr. Anson Dart, representing the United States, negotiated a series of treaties with the Chinook and other bands of Indians in the region to provide a reservation at Shoalwater Bay. His treaties contemplated fishing rights on the rivers emptying into the Bay. They were never ratified, however, and no lands or rights were reserved as a result of Dart's efforts.

3. The Chehalis River Council and Treaty of Olympia

In 1855, Governor Stevens of Washington Territory held a treaty council at the Chehalis River. Members of many bands of local Indians, including Chehalis, Chinook and Cowlitz Indians, attended. Stevens proposed a treaty whereby all tribes of the region would be removed to a reservation in Quinault Indian territory. Article III of the treaty guaranteed signing tribes "the right of taking fish at all usual and accustomed grounds and stations." Article VI allowed the President to consolidate the signing tribes with other "friendly tribes and bands." See Wahkiakum Band of Chinook Indians v. Bateman, 655 F.2d 176, 179 n. 6 (9th Cir.1981).

The Indians living at Shoalwater Bay refused to sign because they wanted a separate reservation at the bay and objected to being relocated to unfamiliar Quinault territory. Similarly, representatives of the Upper Chehalis refused to sign because they wanted to stay on the Chehalis River and preferred a reservation there. The Quinault Tribe did sign, perhaps because the treaty guaranteed them a reservation where they were already living. The neighboring Quileute, Queets and Hoh Tribes eventually signed as well, and the Senate ratified the treaty in 1859. It is known both as the Treaty of Olympia and the Treaty with the Quinault.

Governor Stevens intended to renew treaty negotiations with the non-signing tribes, but his attention was diverted by other events, including the Civil War and the outbreak of an Indian war. No treaty was ever concluded with the Chehalis, Chinook or Cowlitz Tribes.

4. Orders Creating the Chehalis and Shoalwater Reservations

The flood of settlers into the region continued. In response, the government sought to set aside reservations for the Chehalis, Chinook and Cowlitz Indians at the locations requested at the Chehalis River Council. In 1860, Michael Simmons, a member of Stevens' treaty commission, wrote to the Superintendent of Indian Affairs for the Washington and Oregon Territory that:

The Upper and Lower Chehalis, the Cowlitz and Chinook Indians, numbering between seven and eight hundred, are not parties to the existing treaties, and are certainly entitled to the care of the government. They are in the immediate neighborhood of the settlements, living in most instances on the land of white settlers. I have selected a piece of ground adapted to their wants, and upon which I think it will be advisable to settle the Cowlitz and Upper Chehalis tribes. The Chinooks and Lower Chehalis should be located somewhere near the seashore, as their previous habits and mode of living render such a location necessary.

Letter from Simmons to Superintendent Geary, July 1, 1860.

Further discussions among government officials culminated in the establishment in 1864 of the Chehalis Reservation by order of the Secretary of the Interior. Two years later, President Johnson entered an order establishing the Shoalwater Bay Reservation. That order, written by hand on a map of the proposed reservation, reads:

Let the tract of land as indicated on the within diagram be reserved from sale and set apart for Indian purposes, as recommended by the Secretary of the Interior in his letter of the 18th instant, said tract embracing portions of sections 2 and 3 in township 14 north, range 11 west, Washington Territory.

5. Expansion and Allotment of the Quinault Reservation

In 1871, only Quinault Indians lived on the Quinault Reservation. Despite the provision of the Treaty of Olympia requiring the Quileute, Queets and Hoh to move to the reservation, these tribes remained at their traditional homes on the coast to the north. In 1872, Superintendent Milroy proposed that the reservation be enlarged so that these tribes, along with other Indians of the region, could be collected on the enlarged reservation. An executive order of 1873 enlarged the reservation:

In accordance with the provisions of the treaty with the Quinaielt and Quillehute Indians, concluded July 1, 1855, and January 25, 1856 (Stats. at Large, vol. 12, p. 971), and to provide for other Indians in that locality, it is hereby ordered that the following tract of country in Washington Territory ... be withdrawn from sale and set apart for the use of the Quinaielt, Quillehute, Hoh, Quit, and other tribes of fish-eating Indians on the Pacific coast....

I Charles Kappler, Indian Affairs: Laws and Treaties 923 (1904). ¹

In 1911, Congress directed the Secretary of Interior to make allotments on the Quinault Reservation under the provisions of the allotment laws to "all members of the Hoh, Quileute, Ozette or other tribes of Indians of Washington who are affiliated with the Quinaielt and Quileute tribes in the [Treaty of Olympia] and who may elect to take allotments on the Quinault Reservation rather than on the reservations set aside for these tribes." The Supreme Court subsequently ruled that members of the Chehalis, Chinook and Cowlitz tribes were entitled to allotments on the Quinault reservation pursuant to this act and the 1873 executive order. Halbert, 283 U.S. at 758, 51 S.Ct. at 616-17.

6. Order Opening up Chehalis Reservation for Homesteading

In the late 1870's and early 1880's, local Indian officials sought to provide allotments for Indians living on the Chehalis Reservation. Because the executive order establishing the reservation contained no legal authority for allotment, the officials proposed that the Chehalis reservation land be restored to the public domain so that the Chehalis Indians could immediately obtain homesteads on the reservation under the homestead laws. This was done by executive order in 1886. The order opened up all but 471 acres of the reservation, which were withdrawn from sale and "set apart...