CONFEDERATED TRIBES OF UMATILLA IND. RES. v. Maison

• Decision Date: 10 June 1960
• Docket Number: Civ. No. 77-59.
• Citation: 186 F. Supp. 519
• Parties: CONFEDERATED TRIBES OF the UMATILLA INDIAN RESERVATION, and Elias J. Quaempts, William Minthorn, David S. Hall, Joseph T. Johnson, Arthur Motanic, Joseph T. Williams, Louise M. Elk, and Jesse Jones, each on its or his own behalf and as representative of the members of the Confederated Tribes of the Umatilla Indian Reservation, Pendleton, Oregon; Plaintiffs, v. H. G. MAISON, individually, and as Superintendent, Department of State Police of the State of Oregon; Robert Y. Thornton, individually, and as Attorney General of the State of Oregon; J. H. Van Winkle, Max Wilson, Ralph T. Renner, Kenneth G. Denman, and Rollin E. Bowles, individually, and as members of the State Game Commission of the State of Oregon; and George L. Anderson, individually, and as District Attorney of Union County, Oregon; Defendants.
• Court: U.S. District Court — District of Oregon

186 F. Supp. 519

CONFEDERATED TRIBES OF the UMATILLA INDIAN RESERVATION, and Elias J. Quaempts, William Minthorn, David S. Hall, Joseph T. Johnson, Arthur Motanic, Joseph T. Williams, Louise M. Elk, and Jesse Jones, each on its or his own behalf and as representative of the members of the Confederated Tribes of the Umatilla Indian Reservation, Pendleton, Oregon; Plaintiffs, v. H. G. MAISON, individually, and as Superintendent, Department of State Police of the State of Oregon; Robert Y. Thornton, individually, and as Attorney General of the State of Oregon; J. H. Van Winkle, Max Wilson, Ralph T. Renner, Kenneth G. Denman, and Rollin E. Bowles, individually, and as members of the State Game Commission of the State of Oregon; and George L. Anderson, individually, and as District Attorney of Union County, Oregon; Defendants.

Civ. No. 77-59.

United States District Court D. Oregon.

June 10, 1960.

Charles F. Luce, Walla Walla, Wash., Frank E. Nash and Robert S. Summers, Portland, Or., for plaintiffs.

Robert Y. Thornton, Atty. Gen., State of Oregon, and Arthur G. Higgs and Roy C. Atchison, Asst. Attys. Gen, for defendants.

SOLOMON, Chief Judge.

The Confederated Tribes of the Umatilla Indian Reservation and seven individual tribesmen brought this action for a declaratory judgment and an injunction against the Oregon Game Commission and various state law enforcement officials. They contend that State regulations which restrict salmon and steelhead fishing in off-reservation tributaries of the Columbia and Snake Rivers cannot be applied to them because of rights reserved in their tribe's treaty with the United States, executed June 9, 1855, 12 Stat. 945. In particular, plaintiffs claim that their treaty right to take fish at all "usual and accustomed stations" bars the state from prohibiting accustomed Indian fishing in specified streams during any portion of the year.

Salmon and steelhead are anadromous fish which ascend from the ocean to fresh water streams to spawn. By instinct, each fish attempts to return to the stream of its birth. Many obstacles are encountered including natural predators, disease, commercial nets, anglers, dams, and water pollution. Severe decimation of a run of fish in any particular stream can result in the destruction of practically all of the fish in such stream. Experiments in stocking barren streams have been costly and only sporadically successful.

The State contends that the high value of brood stock in preserving individual runs and the extreme vulnerability of fish on the beds justifies closing these streams during spawning seasons. It argues that the regulations in question are essential in preserving the resource.

All of the parties concede that the controlling authorities are Tulee v. State of Washington, 1942, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 and Makah Indian Tribe v. Schoettler, 9 Cir., 1951, 192 F.2d 224, 226. Those cases establish that a treaty right to fish in the usual and...