Arnett v. Five Gill Nets

CourtCalifornia Court of Appeals
Writing for the CourtCHRISTIAN; DEVINE, P.J., and RATTIGAN
Citation97 Cal.Rptr. 894,20 Cal.App.3d 729
PartiesG. Raymond ARNETT, as Director of the Department of Fish and Game of the State of California, Plaintiff and Respondent, v. 5 GILL NETS, etc., Defendant. Raymond Mattz, Intervenor and Appellant. Civ. 29109.
Decision Date21 October 1971

Page 894

97 Cal.Rptr. 894
20 Cal.App.3d 729
G. Raymond ARNETT, as Director of the Department of Fish and Game of the State of California, Plaintiff and Respondent,
v.
5 GILL NETS, etc., Defendant.
Raymond Mattz, Intervenor and Appellant.
Civ. 29109.
Court of Appeal, First District, Division 4, California.
Oct. 21, 1971.
Hearing Denied Dec. 16, 1971.

Page 895

George F. Duke, Richard B. Collins, Jr., Lee J. Sclar, William P. Lamb, California Indian Legal Services, Berkeley, for appellant.

Evelle J. Younger, Atty. Gen. of State of California, Roderick Walston, Charleton G. Holland, Deputy Attys. Gen., San Francisco, for respondent.

[20 Cal.App.3d 730] CHRISTIAN, Associate Justice.

Raymond Mattz appeals from a judgment ordering forfeiture under Fish and Game Code section 8630 of 5 nylon gill nets belonging to him. The nets had been seized by a state game warden at a point on the Smith River within one mile of its confluence with the Klamath River. The seizure occurred on land owned by a lumber company, less than 20 miles from the mouth of the Klamath.

Appellant intervened and resisted the petition for forfeiture, asserting [20 Cal.App.3d 731] that he was an enrolled Indian fishing on Indian country and that the statutory prohibition against the use of gill nets was therefore inapplicable.

In 1953, Congress consented to the application of California criminal laws to Indians and 'Indian country' (18 U.S.C., § 1162); But the enactment preserved Indian rights to fish or hunt 'afforded under Federal treaty, agreement, or statute.' Thus, appellant's position depends upon a showing (1) that the nets were found on 'Indian country' within the meaning of the statute, and (2) that there was a 'Federal treaty, agreement, or statute' establishing appellant's right to fish.

Fish and Game Code section 12300, enacted in response to the federal statute, provides that portions of the Fish and Game Code, including those sought to be applied here, do not apply to Indians whose names are inscribed on the tribal roll 'while on the reservation of such tribe' in cases where the code would not previously have applied. (See Elser v. Gill Net Number One (1966) 246 Cal.App.2d 30, 36--37, 54 Cal.Rptr. 568.) Thus appellant's entitlement to protection under the California statute also depends on fact determinations: (1) whether appellant was 'on the reservation,' and (2) whether he was enrolled as a member of the tribe.

The trial court made a single dispositive determination that the land where the nets were seized was not Indian land within the meaning of either 18 U.S.C., section 1162 or Fish and Game Code section 12300. The only issue in the appeal is whether that determination was correct.

The following history of the land where the nets were seized is abstracted from Elser v. Gill Net Number One, supra, 246 Cal.App.2d 30, 33-34, 54 Cal.Rptr. 568, and Donnelly v. United States (1912) 228 U.S. 243, 253--254, 3o S.Ct. 449, 57 L.Ed. 820. The disputed area is a strip running 20 miles upstream from the mouth of the Klamath River, and extending one mile on either side of the river. The area, inhabited by the Klamath Indians, was early designated the 'Klamath River Reservation.'

Page 896

The reservation was terminated in 1864 by an act of Congress which authorized the establishment of four reservations in California, and directed that land in the existing reservations not incorporated in the four designated reservations be sold. (13 Stat. 39.) Pursuant to the statute, the Hoopa Valley Reservation was created nearby. No part of the earlier Klamath River Reservation was incorporated in it; the former Klamath River Reservation was later adjudged to have been vacated. (United States v. Forty-Eight Pounds of Rising Star Tea, etc. (Dist.Ct., N.D.Cal. 1888) 35 F. 403, 406.)

Thereafter, in 1891, the Hoopa Valley Reservation was enlarged by executive order to include a strip of land one mile wide on each side of the river running from its former boundary to the mouth of the Klamath River. [20 Cal.App.3d 732] This order was held to be effective. (Donnelly v. United States, supra, 228 U.S. 243, 258--259, 33 S.Ct. 449.) Then, in 1892, pursuant to the 1887 General Allotment Act, 1 the strip which had previously been the old Klamath River Reservation was opened for public purchase. (27 Stat. 52.) This 1892 enactment is the basis of the conflict here. If it resulted in loss of reservation status of the old Klamath River Reservation area, the trial court was correct in finding that the nets were not seized on 'Indian country.' The appellate court in Elser, supra, 246 Cal.App.2d 30, 34, 54 Cal.Rptr. 568, declared that the old...

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4 practice notes
  • Mattz v. Superior Court, No. S002805
    • United States
    • United States State Supreme Court (California)
    • August 22, 1988
    ...not Indian territory and that the gill nets were therefore subject to seizure pursuant to state law. (Arnett v. Five Gill Nets (1971) 20 Cal.App.3d 729, 97 Cal.Rptr. 894.) The United States Supreme Court granted certiorari and reversed, concluding "that the Klamath Indian Reservation was no......
  • Mattz v. Arnett 8212 1182, No. 71
    • United States
    • United States Supreme Court
    • June 11, 1973
    ...in 1958, by restoring to tribal ownership certain vacant and undisposed-of ceded lands in the reservation. P. 505. 20 Cal.App.2d 729, 97 Cal.Rptr. 894, reversed and remanded. Lee J. Sclar, Berkeley, Cal., for petitioner. Harry R. Sachse, New Orleans, La., for United States, as amicus curiae......
  • State v. Molash, No. 10959
    • United States
    • Supreme Court of South Dakota
    • July 19, 1972
    ...involved and the fact that on March 14, 1972, a petition for certiorari was filed in that court to review the Arnett v. 5 Gill Nets, 20 Cal.App.3d 729, 97 Cal.Rptr. 894, opinion (sub nomine, Mattz v. Arnett, 71--1182, 40 U.S. Law Week 3494), it may be in the public interest that the Attorne......
  • Quechan Tribe of Indians v. Rowe, Civ. No. 72-56-GT.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • October 19, 1972
    ...Indians authority to enact certain laws, and those laws conflict with state laws, the Indian laws prevail. Arnett v. Five Gill Nets, 20 Cal.App. 3d 729, 97 Cal.Rptr. 894 (1971), although decided on other grounds, recognized that a state Fish and Game Code provision cannot be enforced if it ......
4 cases
  • Mattz v. Superior Court, No. S002805
    • United States
    • United States State Supreme Court (California)
    • August 22, 1988
    ...not Indian territory and that the gill nets were therefore subject to seizure pursuant to state law. (Arnett v. Five Gill Nets (1971) 20 Cal.App.3d 729, 97 Cal.Rptr. 894.) The United States Supreme Court granted certiorari and reversed, concluding "that the Klamath Indian Reservation was no......
  • Mattz v. Arnett 8212 1182, No. 71
    • United States
    • United States Supreme Court
    • June 11, 1973
    ...in 1958, by restoring to tribal ownership certain vacant and undisposed-of ceded lands in the reservation. P. 505. 20 Cal.App.2d 729, 97 Cal.Rptr. 894, reversed and remanded. Lee J. Sclar, Berkeley, Cal., for petitioner. Harry R. Sachse, New Orleans, La., for United States, as amicus curiae......
  • State v. Molash, No. 10959
    • United States
    • Supreme Court of South Dakota
    • July 19, 1972
    ...involved and the fact that on March 14, 1972, a petition for certiorari was filed in that court to review the Arnett v. 5 Gill Nets, 20 Cal.App.3d 729, 97 Cal.Rptr. 894, opinion (sub nomine, Mattz v. Arnett, 71--1182, 40 U.S. Law Week 3494), it may be in the public interest that the Attorne......
  • Quechan Tribe of Indians v. Rowe, Civ. No. 72-56-GT.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • October 19, 1972
    ...Indians authority to enact certain laws, and those laws conflict with state laws, the Indian laws prevail. Arnett v. Five Gill Nets, 20 Cal.App. 3d 729, 97 Cal.Rptr. 894 (1971), although decided on other grounds, recognized that a state Fish and Game Code provision cannot be enforced if it ......

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