Antoine v. Washington 8212 717

Decision Date19 February 1975
Docket NumberNo. 73,73
Citation95 S.Ct. 944,43 L.Ed.2d 129,420 U.S. 194
PartiesAlexander J. ANTOINE et ux., Appellants, v. State of WASHINGTON. —717
CourtU.S. Supreme Court

Appellant Indians were convicted of state statutory game violations that had allegedly been committed in an area of a former Indian reservation that the tribe had ceded to the Government by an Agreement made in 1891, later ratified and implemented by Congress, one of whose provisions (Art. 6), relied upon as a defense by appellants, specified that the hunting rights of Indians in common with other persons would not be taken away or abridged. The State Supreme Court, upholding the lower court's rejection of appellants' defense, held that Congress was not constitutionally empowered to inhibit a State's exercise of its police power by legislation ratifying a contract, to which as here the State was not a party between the Executive Branch and an Indian tribe; that in any event the federal implementing statutes (which did not mention Art. 6) did not render the State's game laws inapplicable to the Indian beneficiaries of the Agreement; and that Art. 6 was merely a promise by the United States that so long as it retained any ceded land and allowed others to hunt thereon, Indians also would be permitted to hunt there. Held:

1. The ratifying legislation must be construed in the light of the longstanding canon of construction that the wording of treaties and statutes ratifying agreements with the Indians is not to be construed to their prejudice. Pp. 199-200.

2. The Supremacy Clause precludes application of the state game laws here since the federal statutes ratifying the 1891 Agreement between the Executive Branch and the Indian tribe are 'Laws of the United States . . . made in Pursuance' of the Constitution and therefore like all 'Treaties made' are made binding upon affected States. Nor does the fact that Congress had abolished the contract-by-treaty method of dealing with Indian tribes affect Congress' power to legislate on the problems of Indians, including legislation ratifying contracts between the Executive Branch with Indian tribes to which affected States were not parties. Choate v. Trapp, 224 U.S. 665, 32 S.Ct. 565, 56 L.Ed. 941; Perrin v. United States, 232 U.S. 478, 34 S.Ct. 387, 58 L.Ed. 691. Pp. 200-204.

3. In ratifying the Agreement pursuant to its plenary constitutional powers Congress manifested no purpose of subjecting the rights conferred upon the Indians to state regulation, and in view of the unqualified ratification of Art. 6 any state qualification of those rights is precluded by the Supremacy Clause. Pp. 204-205.

4. Although the State is free to regulate non-Indian hunting rights in the ceded area, the ratifying legislation must be construed to exempt the Indians from like state control or Congress would have preserved nothing that the Indians would not have had without the legislation, which would have been 'an impotent outcome to (the) negotiations.' United States v. Winans, 198 U.S. 371, 380, 25 S.Ct. 662, 49 L.Ed. 1089. Pp. 205-206.

82 Wash.2d 440, 511 P.2d 1351, reversed and remanded.

Mason D. Morisset, Seattle, Wash., for appellants.

Joseph Lawrence Coniff, Jr., Olympia, Wash., for appellee.

Mr. Justice BRENNAN delivered the opinion of the Court.

The appellants, husband and wife, are Indians. They were convicted in the Superior Court of the State of Washington1 of the offenses of hunting and possession of deer during closed season in violation of Wash.Rev.Code §§ 77.16.020 and 77.16.030 (1974).2 The offenses occurred on September 11, 1971, in Ferry County on unallotted non-Indian land in what was once the north half of the Colville Indian Reservation.3 The Colville Confederated Tribes ceded to the United States that northern half under a congressionally ratified and adopted Agreement, dated May 9, 1891. Article 6 of that ratified Agreement provided expressly that 'the right to hunt and fish in common with all other persons on lands not allotted to said Indians shall not be taken away or in anywise abridged.'4 Appellants' defense was that con- gressional approval of Art. 6 excluded from the cession and retained and preserved for the Confederated Tribes the exclusive, absolute, and unrestricted rights to hunt and fish that had been part of the Indians' larger rights in the ceded portion of the reservation, thus limiting governmental regulation of the rights to federal regulation and precluding application to them of Wash.Rev.Code §§ 77.16.020 and 77.16.030. The Supreme Court of Washington held that the Superior Court had properly rejected this defense and affirmed the convictions, 82 Wash.2d 440, 511 P.2d 1351 (1973). We noted probable jurisdiction, 417 U.S. 966, 94 S.Ct. 3169, 41 L.Ed.2d 1137 (1974). We reverse.


President Grant established the original Colville Indian Reservation by Executive Order of July 2, 1872. Washington became a State in 1889, 26 Stat. 1552, and the next year, by the Act of Aug. 19, 1890, 26 Stat. 355, Congress created the Commission that negotiated the 1891 Agreement.5 By its terms, the Tribes ceded the northern half of the reservation in return for benefits which included the stipulations of Art. 6 and the promise of the United States to pay $1,500,000 in five installments. The Agreement was to become effective, however, only 'from and after its approval by Congress.' Congressional approval was given in a series of statutes. The first statute was the Act of July 1, 1892, 27 Stat. 62, which 'vacated and restored (the tract) to the public domain . . .,' and 'open(ed) . . . (it) to settlement . . ..' The second statute came 14 years later, the Act of June 21, 1906, 34 Stat. 325, 377—378. That statute in terms 'carr(ied) into effect the agreement,' and authorized the appropriation of the $1,500,000. Payment of the $1,500,000 was effected by five subsequent enactments from 1907 to 1911, each of which appropriated $300,000 and recited in substantially identical language that it was part payment 'to the Indians on the Colville Reservation, Washington, for the cession of land opened to settlement by the Act of July first, eighteen hundred and ninety-two . . . being a part of the full sum set aside and held in the Treasury of the United States in payment for said land under the terms of the Act of June twenty-first, nineteen hundred and six, ratifying the agreement ceding said land to the United States under date of May ninth, eighteen hundred and ninety-one . . ..' (Emphasis supplied.) 34 Stat. 1015, 1050—1051 (1907); 35 Stat. 70, 96 (1908); 35 Stat. 781, 813 (1909); 36 Stat. 269, 286 (1910); 36 Stat. 1058, 1075 (1911).6 The canon of construction applied over a century and a half by this Court is that the wording of treaties and statutes ratifying agreements with the Indians is not to be construed to their prejudice. Worcester v. Georgia, 6 Pet. 515, 8 L.Ed. 483 (1832). See also Kansas Indians, 5 Wall. 737, 760, 18 L.Ed. 667 (1867); United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886); Choctaw Nation v. United States, 119 U.S. 1, 28, 7 S.Ct. 75, 30 L.Ed. 306 (1886); United States v. Winans, 198 U.S. 371, 380—381, 25 S.Ct. 662, 663—664, 49 L.Ed. 1089 (1905); Choate v. Trapp, 224 U.S. 665, 675, 32 S.Ct. 565, 569, 50 L.Ed. 941 (1912); Menominee Tribe v. United States, 391 U.S. 404, 406 n. 2, 88 S.Ct. 1705, 1707, 20 L.Ed.2d 697 (1968). In Choate v. Trapp, supra, also a case involving a ratifying statute, the Court stated: 'The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith.' 224 U.S., at 675, 32 S.Ct. at 569. See also Seminole Nation v. United States, 316 U.S. 286, 296, 62 S.Ct. 1049, 1054, 86 L.Ed. 1480 (1942); Morton v. Ruiz, 415 U.S. 199, 236, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1974). Thus, even if there were doubt, and there is none, that the words '(t)o carry into effect the (1891) agreement,' in the 1906 Act, and the words 'ratifying the (1891) agreement,' in the 19071911 laws, ratified Art. 6, application of this canon would require that we construe the series of statutes as having ratified that article.


Although admitted to statehood two years earlier, the State of Washington was not a party to the 1891 Agreement. The opinion of the State Supreme Court relies upon that fact to attempt a distinction for purposes of the Supremacy Clause7 between the binding result upon the State of ratification of a contract by treaty effected by concurrence of two-thirds of the Senate, Art. II, § 2, cl. 2, and the binding result of ratification of a contract effected by legislation passed by the House and the Senate. The opinion states that '(o)nce ratified, a treaty becomes the supreme law of the land' (emphasis supplied), but that the ratified 1891 Agreement was a mere contract enforceable 'only against those party to it,' and 'not a treaty . . . (and) not the supreme law of the land.' 82 Wash.2d, at 444, 451, 511 P.2d, at 1354, 1358. The grounds of this attempted distinction do not clearly emerge from the opinion. The opinion states, however: 'The statutes enacted by Congress in implementation of this (1891) agreement . . . are the supreme law if they are within the power of the Congress to enact . . ..' Id., at 451, 511 P.2d at 1358. In the context of the discussion in the opinion we take this to mean that the Congress is not constitutionally empowered to inhibit a State's exercise of its police power by legislation ratifying a contract between the Executive Branch and an Indian tribe to which the State is not a party. The fallacy in that proposition is that a legislated ratification of an agreement between the Executive Branch and an Indian tribe is a '(Law) of the United States . . . made in Pursuance' of the Constitution and,...

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