Elser v. Gill Net No. One

• Decision Date: 31 October 1966
• Citation: 246 Cal.App.2d 30,54 Cal.Rptr. 568
• Court: California Court of Appeals Court of Appeals
• Parties: William F. ELSER, Jamie H. Smith, T. H. Richards, Jr., Henry Clineschmidt, and Dante J. Nomellini, as the Fish and Game Commission of the State of California, Petitioners and Appellants, v. GILL NET NUMBER ONE, Defendant. Grover Reed, Intervener and Respondent. William F. ELSER, Jamie H. Smith, T. H. Richards, Jr., Henry Clineschmidt, and Dante J. Nomellini, as the Fish and Game Commission of the State of California, Petitioners and Appellants, v. GILL NET NUMBER ONE, Defendant. Dewey George, Intervener and Respondent. Civ. 23058, 23059.

Page 568

54 Cal.Rptr. 568

246 Cal.App.2d 30

William F. ELSER, Jamie H. Smith, T. H. Richards, Jr., Henry Clineschmidt, and Dante J. Nomellini, as the Fish and Game Commission of the State of California, Petitioners and Appellants, v. GILL NET NUMBER ONE, Defendant.

Grover Reed, Intervener and Respondent.

William F. ELSER, Jamie H. Smith, T. H. Richards, Jr., Henry Clineschmidt, and Dante J. Nomellini, as the Fish and Game Commission of the State of California, Petitioners and Appellants, v. GILL NET NUMBER ONE, Defendant.

Dewey George, Intervener and Respondent.

Civ. 23058, 23059.

District Court of Appeal, First District Division 2, California.

Oct. 31, 1966.

Hearing Denied Dec. 27, 1966.

Thomas C. Lynch, Atty. Gen., of California, Ralph W. Scott, Roderick Walston, Deputy Attys. Gen., San Francisco, for appellants.

William C. Wunsch, Faulkner, Sheehan & Wiseman, San Francisco, for respondents.

TAYLOR, Justice.

On this appeal by the State from adverse judgments in these consolidated actions to forfeit defendant gill nets, ¹ the only question is whether the trial court properly concluded that interveners and respondents Grover Reed and Dewey George (hereafter interveners) are exempt from the provisions of the Fish and Game Code pursuant to section 12300 of that code. ²

The basic facts are not disputed. On April 5 and 19, 1964, respectively, a department game warden seized defendant gill nets, as the meshes of each exceeded the mesh size permitted by sections 8664 and 8686 of the code. ³ The first net, subsequently claimed by Grover Reed, was approximately 53 feet long and 12 feet deep and was strung across the Klamath River about one-quarter mile downstream from the mouth of Pecwan Creek; the second net, subsequently claimed by Dewey George, was about 91 feet long and was in a boat partially lodged on the bank of and partially in the Klamath River near Superstition Rock. Both nets were found within that portion of the Hoopa Indian Reservation known as the Hoopa Extension.

Grover Reed and Dewey George are full-blooded Yurok or Lower Klamath River Indians, ⁴ descendants of Lower Klamath River Indians who were allotted specific tracts of land in the Hoopa Extension. Both were born and had lived and fished most of their lives in the area where the nets were found. Both were enrolled as Klamath River or Yurok Indians and as 'wards' of the Federal Government on the 1931, 1937, and 1940 rolls of the Bureau of Indian Affairs (hereafter Bureau), as well as the Bureau's roll of living allottees and direct descendants of allottees on the Hoopa Extension.

The State first argues that the trial court erred in concluding that the interveners are eligible for the general exemption provided by section 12300 because they have been accorded special and more restricted benefits by section 7155, which provides, so far as pertinent: 'Right of members of Yurok Indian tribe to take fish from Klamath River: Conditions. Notwithstanding any other provisions of this code, California Indians who are bona fide registered members of the Yurok Indian Tribe may take fish, for subsistence purposes only, from the Klamath River between the mouth of that river and the junction of Tectah Creek with it, exclusive of tributaries, without regard to seasons, under the following conditions.' The conditions, admittedly, do not permit the type of nets here in question.

A brief history of the Hoopa Valley Indian Reservation is required for an understanding of the question presented. The Klamath River area was originally a part of the public domain transferred by Mexico to the United States in 1848 by the treaty of Guadalupe Hidalgo (Donnelly v. United States, 228 U.S. 243, 252--259, 33 S.Ct. 449, 57 L.Ed. 820). The earliest Indian reservation in that part of northern California, known as the Klamath River Reservation, was a military reservation established by executive order dated November 16, 1855, pursuant to an Act of Congress (10 Stats. 686). It extended 20 miles up the river from its mouth, and was one mile in width on each side of the Klamath River and was subsequently inhabited by about 2,500 Indians. It was abandoned in 1861 after a disastrous flood. The Klamath River Reservation was formally terminated in 1864, when Congress enacted a statute designed to provide adequate permanent reservations for all of the Indians of California (13 Stats. 39). This statute authorized the President to set apart four tracts of land within the State of California to be retained by the United States as Indian reservations of suitable extent and for the accommodation of all of the Indians of California, and specifically directed that any existing reservations not retained were to be surveyed into lots or parcels of suitable size, to be offered for public sale (United States v. Forty-eight Pounds of Rising Star Tea, etc. (D.C.N.D.1888) 35 F. 403, at pp. 404--405).

Pursuant to the above statute, on April 8, 1864, the President set aside, by the posting of a public notice by the Superintendent of Indian Affairs for the State of California, four Indian reservations in California, including the Hoopa Valley Indian Reservation. ⁵ On June 23, 1876, President Grant, by executive order, formally defined the boundaries of the Hoopa Valley Reservation as a tract of country approximately 12 miles square, containing about 89,000 acres, lying on both sides of the Trinity River immediately above its junction with the Klamath River. No portion of the abandoned Klamath River Reservation was included in the Hoopa Valley Reservation.

Fifteen years later, on October 16, 1891, President Harrison, by executive order, enlarged the Hoopa Valley Reservation to include a two-mile-wide strip of land lying one mile on each side of the Klamath River from the original northern boundary of the reservation at the junction of the Klamath and Trinity Rivers to the mouth of the Klamath, a distance of about 40 miles. The lower 20 miles of this 40-mile-long strip of land coincided with the area of the former Klamath River Reservation. The validity of this executive order was challenged and upheld in Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed.2d 820. ⁶ The Donnelly opinion further pointed out (at pp. 258--259, 33 S.Ct. 449) that in the year immediately following President Harrison's executive order, the extended area was occupied by the Lower Klamath Tribe, whose principal subsistence was fishing.

In 1887 Congress passed the General Allotment Act (25 U.S.C.A. §§ 331, 358) designed to break up the reservations and allot specific parcels of land to individual Indians, the land remaining after allotment to be opened for settlement. Accordingly, in 1892 Congress passed a Special Act directing that the area of the old Klamath River Reservation be immediately opened for public purchase (27 Stats. 52). Thus, the lower 20 miles of the 40-mile-long strip of land included in the 1891 extension of the Hoopa Valley Reservation, for all practical purposes, almost immediately lost its identity as part of the Hoopa Valley Reservation. However, the upper 20 miles of the strip was not affected by the Act of 1892, has remained an integral part of the Hoopa Valley Reservation to the present time, and has become commonly known as the Hoopa Extension or Hoopa Extension Reservation.

The language of section 7155 indicates that the State's contention (made clearly for the first time on appeal) ⁷ is entirely without substance. Section 7155, which has been a part of the Fish and Game Code since 1951, ⁸ grants to bona fide registered members of the Yurok or Lower Klamath Tribes the privilege of taking fish without regard to seasons, under certain prescribed conditions, in that strip of the Klamath River extending upstream from its mouth to its junction with Tectah Creek, namely, the portion of the Klamath River that was encompassed by the old Klamath River Reservation, which was affected by the 1892 statute, and has never been any part of the Hoopa Extension. Nor can we agree that the section 7155 grant of limited fishing privileges in an area beyond the reservation is an unconstitutional discrimination in favor of the Yuroks, or in any way limits the general privileges granted by section 12300, On the reservation.

It is undisputed in the instant case that the two locations at which the interveners' nets were found were within the boundaries of the Hoopa Extension and not in the area to which section 7155 relates. We hold that the trial court properly concluded that section 7155 merely grants members of the Yurok or Lower Klamath Tribes certain limited special fishing privileges in an area that was part of their ancestral lands, but which are has not been regarded as part of the reservation since 1892.

We turn, therefore, to the State's chief contention on appeal, namely, that the trial court erred in holding that section 12300 immunized the interveners from the prohibitory provisions of the Fish and Game Code as the interveners did not meet all of the requirements specified therein. Section 12300 provides: 'Irrespective of any other provision of law, the provisions of this code are not applicable to California Indians whose names are inscribed upon the tribal rolls, while on the reservation of such tribe and under those circumstances in this State where the code was not applicable to them immediately prior to the effective date of Public Law 280, Chapter 505, First Session, 1953, Eighty-third Congress of the United States. ⁹

'No such Indian shall be prosecuted for the violation of any provision of this code occurring in the places and under the circumstances hereinabove referred to. Nothing in this section, however, prohibits or restricts the prosecution of any Indian for the violation of any provision of this code prohibiting the sale of any bird, mammal, This Act applied only to Indian tribes fish, or amphibia.'

A brief history of section 12300 and the federal statute cited...