Arnett v. Five Gill Nets

• Decision Date: 27 May 1975
• Citation: 121 Cal.Rptr. 906,48 Cal.App.3d 454
• Court: California Court of Appeals Court of Appeals
• Parties: G. Raymond ARNETT, as Director of Department of Fish and Game of the State of California, Plaintiff and Appellant, v. 5 GILL NETS et al., Defendants, Raymond Mattz, Intervenor and Respondent. Civ. 35783.

Page 906

121 Cal.Rptr. 906

48 Cal.App.3d 454

G. Raymond ARNETT, as Director of Department of Fish and Game of the State of California, Plaintiff and Appellant, v. 5 GILL NETS et al., Defendants, Raymond Mattz, Intervenor and Respondent.

Civ. 35783.

Court of Appeal, First District, Division 3, California.

May 27, 1975.

Hearing Denied July 23, 1975.

Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., Roderick Walston, Deputy Atty. Gen., San Francisco, for plaintiff and appellant.

James F. King, Jr., Ukiah, Richard A. Smith, Bruce Greene, Lew Hollman & Richard A. Smith, Eureka, California Indian Legal Services, Oakland, for intervenor and respondent.

HAROLD C. BROWN, Acting Presiding Justice.

This is an appeal from a judgment involving the jurisdiction of the State of California to regulate fishing by Indians on the Klamath River Reservation.

In September of 1969, a California game warden seized five gill nets owned by Raymond Mattz, a Klamath River Indian. The Department of Fish and Game, through its director, petitioned the Superior Court of Del Norte County for authority to sell or destroy the nets. Mattz intervened in the action, claiming that the Fish and Game Code was not applicable to Indians fishing on their reservation. When the petition was first heard, the trial court found that the Klamath River Reservation, at the place where the nets were seized, was not Indian country and, therefore, the gill nets prohibited by the Fish and Game Code were subject to seizure. On certiorari, the United States Supreme Court in Mattz v. Arnett (1973) 412 U.S. 481, 9o S.Ct. 2245, 37 L.Ed.2d 92, reversed this judgment and held that the lower 20 miles of the Klamath River on which the nets were seized was still a reservation despite the opening of the land to non-Indian settlement in 1892. The cause was remanded for a determination of 'the existence of Mattz' fishing rights and to the applicability of California law notwithstanding reservation status.' (412 U.S at p. 485, 93 S.Ct. at p. 2248.)

The trial court concluded that the State may not regulate fishing by Indians on the Klamath River Reservation due to the fact that the federal government in transferring jurisdiction over Indian reservations to the State of California exempted the fishing rights here involved. The court ordered the nets returned to Mattz and the State has appealed.

Mattz 'is a Yurok, or Klamath River, Indian, who since the age of nine, regularly fished, as his grandfather did before him, with dip, gill, and trigger nets, at a location called Brooks Riffle on the Klamath River. . . . The nets were stored near Brooks Riffle, approximately 200 feet from the river, and within 20 miles of the river's mouth.' (412 U.S. at p. 484, 93 S.Ct. at p. 2247.)

The property on which the nets were found is owned by a private logging company. Although an 1892 Act of Congress opened the reservation land for settlement, the resulting ownership by non-Indians did not terminate the reservation but was 'completely consistent with continued reservation status.' (Mattz v. Arnett, supra, at p. 497, 93 S.Ct. at p. 2254.) The court explained, citing Seymour v. Superintendent (1962) 368 U.S. 351, 357--358, 82 S.Ct. 424, 7 L.Ed.2d 346): "The Act did no more (in this respect) than open the way for non-Indian settlers to own land on the reservation in a manner which the Federal Government, acting as guardian and trustee for the Indians, regarded as beneficial to the development of its wards."

The land on which the nets were found is a part of what will be referred to as the Hoopa Valley Indian Reservation. The Hoopa Valley Indian Reservation is composed of three sections, as illustrated by the map below, which is included as an appendix to the opinion in Mattz v. Arnett, Supra, at p. 507, 93 S.Ct. 2245.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The nets were found on the portion of Indian land known as the Klamath River Reservation, a two-mile wide strip of land extending from the mouth of the Klamath River on the Pacific Ocean for approximately 20 miles inland. The land was originally reserved for Indian use in 1855. By Act of March 3, 1853, 10 Stat. 238, the President was authorized to make reservations in the State of California for Indian purposes, and the Klamath River Reservation was made by presidential executive order two years later. In 1876, the 12-mile square area known as the Original Hoopa Valley Reservation was formally set aside by another executive order and in 1891 was extended to include the Klamath River Reservation and also a 30-mile strip in between these areas referred to on the map as the 'Connecting Strip.' The Supreme Court in Mattz v. Arnett explained that the reservations had been consolidated as one because an Act passed in 1864, 13 Stat. 39, had authorized the President to set apart no more than four tracts for Indian reservations in California any by 1891, four reservations had already been so set apart. (412 U.S. at p. 493, 93 S.Ct. 2254; see also Short v. United States, (Ct.Cl.1973) 486 F.2d 561 for history of reservation.)

Mrs. Brooks, intervenor's mother, testified that her family fished with gill nets for their own personal use without State interference until the 1940's. During her girlhood, in the early years of the century, most of the Indians on the lower 20 miles of the river made their living by commercial fishing. Her son, however, fishes only for the subsistence of his family. Fish is a staple of his family's diet and, according to intervenor's testimony, he can only catch sufficient fish for his family's needs by means of gill nets.

The State makes no effort to limit gill netting by Indians elsewhere on the Hoopa Valley Indian Reservation, i.e., on the connecting strip or the original Hoopa Indian Reservation. (See Fish & Game Code, § 12300.) On the Klamath River Reservation, the only method of taking fish that has been permitted is angling. In 1933, the State enacted Fish and Game Code section 429.8 (now § 7155) providing that Yurok Indians could obtain a permit to fish on the Klamath for subsistence without regard to seasons and under certain conditions not permitting gill netting. According to the testimony at trial, there has never been an application for a section 7155 permit. The Indians continue gill netting and suffering occasional arrests and confiscation of nets.

We agree with the trial court that the State did not acquire jurisdiction to regulate the fishing rights here involved by the transference of jurisdiction over Indian reservations to California. In 1953, jurisdiction over Indian reservations and over Indians on such reservations was transferred from the federal government to California by the passage of Public Law 280 (67 Stat. 588, 18 U.S.C. § 1162; 28 U.S.C. § 1360.) Public Law 280 provides, however, that its application shall not 'deprive any Indian or any Indian tribe, band, or community of any right, privilege, or immunity afforded under any Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.'

The State takes the position that the asserted fishing rights here were not based on a treaty, statute or agreement but on executive order because the reservation itself was created by executive order. The Attorney General cites the case of Sioux Tribe v. United States (1942) 316 U.S. 317, 62 S.Ct. 1095, 86 L.Ed. 1501, as illustrative of the fact that there is a distinction drawn by the United States Supreme Court between Indian rights based on treaties and executive orders. The Sioux Tribe case is indeed informative but does not support the Attorney General. The Great Sioux Reservation was an Indian reservation whose borders has been delineated by treaty but a part of the public domain bordering on the reservation had been set aside for Indian purposes solely by executive order. ¹ Later, executive orders returning the additions to the public domain were challenged by the Indians and compensation claimed. In denying the claims of the Indians, the court stated that 'Since the Constitution places the authority to dispose of public lands exclusively in Congress, the executive's power to convey any interest in these lands must be traced to Congressional delegation of its authority.' (316 U.S. at p. 326, 62 S.Ct. at p. 1099.)

Here, the creation of the reservation can be traced to Congressional authority, i.e., the Act of March 3, 1853, 10 Stat. 238, by which the President was 'authorized to make five military reservations from the public domain in the State of California or the Territories of Utah and New Mexico bordering on said State, for Indian purposes.' (See Mattz v. Arnett, supra, 412 U.S. at p. 487, 93 S.Ct. 2245.) Whatever rights the Indians had on the reservation, therefore, were not created by executive order but by statute.

The State argues that this conclusion is contrary to the legislative intent and that the language 'treaty, agreement, or statute' must be strictly construed to exclude fishing rights on reservations created by executive order even where the ultimate authority is statutory. The United States Supreme Court in Metlakatla Indians v. Egan (1962) 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed.2d 562, did not accept an interpretation of the subject language to exclude fishing rights promulgated by regulation where the right to make the regulation was given by statute. The court explained at pages 56--57, at page 560 of 82 S.Ct.:

'This statute (Public Law 280) expressly protects against state invasion all uses of Indian property authorized by federal treaty, agreement, statute, or regulation, but only those fishing rights and privileges given by federal treaty, agreement, or statute. It might plausibly be argued, therefore, that fishing rights given by regulation are not protected and state jurisdiction is established. Legislative history is silent as to the interpretation of...