Blake v. Arnett

• Decision Date: 14 December 1981
• Docket Number: 80-4276,Nos. 79-4484,s. 79-4484
• Citation: 663 F.2d 906
• Parties: Harold BLAKE and Margaret Carlson, Plaintiffs-Appellants and Cross-Defendants, v. G. Ray ARNETT, et al., Simpson Timber Company, a corporation, Defendant, Cross-Plaintiff and Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 906

663 F.2d 906

Harold BLAKE and Margaret Carlson, Plaintiffs-Appellants and Cross-Defendants, v. G. Ray ARNETT, et al., Simpson Timber Company, a corporation, Defendant, Cross-Plaintiff and Appellee.

Nos. 79-4484, 80-4276.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 16, 1981.

Decided Dec. 14, 1981.

Michael Pfeffe, Eureka, Cal., Lester Marston, Escondido, Cal., argued, for Blake; Pauline C. Girvin, Eureka, Cal., on brief.

Noble K. Gregory, San Francisco, Cal., argued, for Arnett; James N. Roethe, Steven Stublarec, Pillsbury, Madison & Sutro, San Francisco, Cal., on brief.

Appeals from the United States District Court for the Northern District of California.

Before TUTTLE, ^* DUNIWAY, and ANDERSON, Circuit Judges.

DUNIWAY, Circuit Judge:

Before us are two appeals. No. 79-4484 is from an order of Judge Burke certifying a class of cross-defendants, appealable under 28 U.S.C. § 1292(b). No. 80-4276 is from a summary judgment of Judge Schnacke in favor of Simpson Timber Company and against plaintiffs Blake and Carlson, made appealable under Rule 54(b), F.R.Civ.P.

I.

We first consider appeal No. 80-4276. We affirm.

A. Facts.

Appellants Blake and Carlson are Yurok Indians. The case concerns their claimed rights to enter and cross lands of Simpson Timber Company to exercise Yurok hunting and fishing rights. The lands involved are part of the old Klamath River Indian Reservation in California, a strip of territory commencing at the Pacific Ocean and extending one mile in width on each side of the Klamath river for a distance of approximately 20 miles up river. We refer to this strip as "the Reservation." It is the lower part of a similar strip, over 40 miles long, running from the Ocean to the original Hoopa Valley Indian Reservation at the confluence of the Klamath and Trinity rivers, and now known as the Hoopa Valley Reservation Extension. The history of the Reservation is described in Mattz v. Arnett, 1973, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92, in which the Court held that the Reservation had not been terminated, "and that the land within the boundaries of the reservation is still Indian country, within the meaning of 18 U.S.C. § 1151." (Id. at 506, 93 S.Ct. at 2258). A map of the Hoopa and Klamath reservations is an appendix to the court's opinion. After the Mattz decision the California Court of Appeal held that the state has no authority to regulate hunting and fishing by the Yuroks within the Reservation. Arnett v. Five Gill Nets, 1975, 48 Cal.App.3d 454, 121 Cal.Rptr. 906, cert. denied, 1976, 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757. As a result of this decision, plaintiffs no longer seek relief against the other defendants, Arnett, O'Brien, and Snell.

Blake lives on the Reservation, has hunted and fished there all his life, and claims to depend on hunting and fishing, especially the latter, for subsistence. Carlson lives in San Francisco but spends summers camping on land in the Reservation and owned by her and her relatives. She and her family derive much of their food from hunting and fishing on the Reservation. Both claim that their hunting and fishing rights extend to Simpson's lands within the Reservation, and that they are entitled to enter and use those lands to get to their fishing grounds, to fish and to hunt, subject only to such reasonable restrictions as the court may impose to protect Simpson's use of its lands.

Simpson owns a great deal of land within the Reservation. Title to most of this land derives from the titles conveyed to individual Indian allottees by the United States under the General Allotment Act of 1887, 24 Stat. 388. Title to the rest derives from the titles of non-Indians who were granted patents to the land by the United States under the Act of June 17, 1892, 27 Stat. 52. This act opened up the Reservation for non-Indian settlement. Simpson's deeds, and the deeds and patents of its predecessors, purport to convey the lands in fee simple, and they contain no reservation of any servitude for or other provision for hunting or fishing rights in favor of the Yurok tribe or its members.

The court gave summary judgment for Simpson. The relevant portion of the judgment reads:

Plaintiffs have no right by virtue of their Indian ancestry to use or enter upon the lands owned in fee simple by Simpson Timber Company situated within the Hoopa Extension Indian Reservation.

Plaintiffs do not assert that it was error to include the entire Hoopa extension, rather than just the lower 20 mile Reservation.

B. Discussion.

Blake and Carlson argue that the Yuroks' right to hunt and fish on the Reservation lands was not extinguished by the acts of 1887 and 1892. They point to the long settled policy that statutes be liberally interpreted to favor the Indian tribes, to the fact that fishing and hunting rights can survive even the termination of a tribe (Menominee Tribe v. United States, 1968, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697), and to the fact that no language in the statutes of 1887 or 1892 explicitly extinguished the hunting and fishing rights. They rely heavily on United States v. Winans, 1905, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. On the other hand, Simpson points to the language of its deeds and patents and to the language and purpose of the acts of 1887 and 1892. It would distinguish United States v. Winans as involving Indian rights based on treaty rather than on statute or executive order.

The plaintiffs might prevail on either of two theories. One theory is that when the United States made allotments and granted patents it gave no better title than it had, and its title was encumbered by a prior grant of or reservation of a fishing and hunting interest to the Indian tribe or its members, or both. This first theory did prevail in United States v. Winans, supra. There the Yakima Nation had by treaty in 1858 ceded certain territories but reserved to itself "the right of taking fish in all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them." 198 U.S. at 378, 25 S.Ct. at 663. The Court reasoned that the treaty reserved the rights and thus imposed a servitude on the land in the "usual and accustomed places."

In its opinion, the Winans Court pointed out that the Indians had possessed hunting and fishing rights long before the white man came, and that hunting and fishing rights "were not much less necessary to the existence of the Indians than the atmosphere they breathed" (198 U.S. at 381, 25 S.Ct. at 664). The same could be said of the Yurok Indians in this case at the time when the Reservation was first created. The Court next construed the treaty as reserving the rights rather than granting them. It held that the rights were "intended to be continuing against the United States and its grantees.... The construction of the treaty disposes of certain subsidiary contentions of respondents. The Land Department could grant no exemptions from its provisions. It makes no difference, therefore, that the patents issued by the Department are absolute in form. They are subject to the treaty as to the other laws of the land." Id. at 381-82, 25 S.Ct. at 664.

Winans goes farther in support of the Indians than it would be necessary to go in our case. At least some of the lands involved there were never a part of an Indian reservation. Here, all that is claimed is rights in lands in a reservation two miles wide and twenty miles long, on each side of a river in which the Indians have always fished. However, for reasons stated later in this opinion, we do not think that Winans controls this case.

Congress can create a reservation, reserve rights to the Indians, and dispose of lands of the United States by statute as well as by treaty. Hynes v. Grimes Packing Co., 1949, 337 U.S. 86, 103-04, 69 S.Ct. 968, 979, 93 L.Ed. 1231. Thus, when a reservation is created by statute, or by Executive order under the authority of a statute, the Indians may be given a right in land. The history of the creation of the reservation here in question is complex. It was not created by treaty. The California Court of Appeal found that it was created by statute, at least for the purposes of the statutory phrase "immunity afforded under Federal ... statute." Arnett v. Five Gill Nets, supra (construing 18 U.S.C. § 1162(b)). Even so, whether a treaty or statute is to be read to create a right in land depends upon its language or purpose. Hynes v. Grimes Packing Co., supra.

We do not think that the distinction between a treaty and a statute has great significance. Before 1871, relations between the United States and Indians were frequently established by treaties with Indian nations which were held to be independent sovereign powers under the protection of the United States. E. g., Worcester v. Georgia, 1832, 31 U.S. (6 Pet.) 515, 559-560, 8 L.Ed. 483. In 1871, Congress determined that "no Indian nation or tribe within the United States shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty...." 16 Stat. 566, now 25 U.S.C. § 71.

However, first, both treaties and statutes are the supreme law of the land. Const. Art. VI, cl. 2. Second, the real power had lain with the United States alone long before 1871. Some at least of the treaties were the embodiment of orders imposed on Indians by the Executive. On occasion the United States invented tribes and appointed their chiefs. Washington v. Washington State Commercial Fishing Vessel Association, 1979, 443 U.S. 658, 664 n.5, 99 S.Ct. 3055, 3064 n.5, 61 L.Ed.2d 823. Third, the change from treaty to statute was at least in part the result of political infighting in Congress. The House was excluded from the treaty making process under Const. Art. II, § 2, cl. 2, and it wished to have a greater say in Indian policies. Antoine v. Washington, 1975, 420 U.S. 194, 202, 95 S.Ct. 944,...