Holcomb v. Confederated Tribes of Umatilla Indian Res., 21459.
| Decision Date | 19 September 1967 |
| Docket Number | No. 21459.,21459. |
| Citation | 382 F.2d 1013 |
| Parties | H. V. HOLCOMB, Individually and as Superintendent, Department of State Police of the State of Oregon et al., Appellants, v. CONFEDERATED TRIBES OF the UMATILLA INDIAN RESERVATION et al., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Y. Thornton, Atty. Gen., Salem, Or., Roy C. Atchinson, Asst. Atty. Gen., Portland, Or., for appellants.
Mark McClanahan, King, Miller, Anderson, Nash & Yerke, Portland, Or., for appellees.
Before CHAMBERS and MERRILL, Circuit Judges, and JAMESON, District Judge.
This is an appeal from a decree declaring that the Confederated Tribes of Umatilla Indians have a right, privilege and immunity under the Treaty of June 9, 1855,1 to hunt for subsistence purposes on "unclaimed lands" without restriction or control under the game laws and regulations of the State of Oregon and from an injunction issued pursuant thereto. Appellants contend that (1) the action was instituted in the wrong forum and the Tribe should have asserted its "rights" before the Indian Claims Commission;2 and (2) the State of Oregon has power to enforce its game laws equally among all of its citizens and the Treaty of 1855 did not grant any special immunity to the Umatilla Tribe of Indians.
Appellants argue that the statute admitting Oregon into the Union conflicted with the Treaty, the Treaty to that extent was amended, any "rights" to hunt granted by the Treaty were "subsequently diminished" by the admission of Oregon, and any claim for damages or other relief by reason of the diminishing of the rights was a matter for determination by the Indian Claims Commission.
While the Treaty was negotiated in 1855, it was not ratified until March 8, 1859 (12 Stat. 945). Oregon was admitted into the Union on February 14, 1859 (11 Stat. 383).3 A Treaty has no effect until it is ratified (87 C.J.S. Treaty § 5, p. 931). The Treaty in question expressly provided that it should be "obligatory on the contracting parties as soon as * * * ratified by the President and Senate of the United States." (12 Stat. 948).
We find no merit in appellants' contention that the Tribe's rights were diminished by the admission of Oregon into the Union. The Tribe did not have, nor is it asserting, any claim for compensation which should have been presented to the Indian Claims Commission.4 The sole question is whether the Treaty granted the rights, privileges and immunities found by the district court.
In Maison v. Confederated Tribes of the Umatilla Indian Reservation, 9 Cir. 1963, 314 F.2d 169, cert. den. 375 U.S. 829, 84 S.Ct. 73, 11 L.Ed.2d 60, this court construed the Treaty of 1855 with respect to fishing rights and held that to deprive the Tribe of its fishing activities, the restriction must be "indispensable, as required by the treaty",5 while "a restriction of the fishing activities of other citizens of a state is valid, if merely reasonable, as required by the Fourteenth Amendment".
The district court found that since the ratification of the Treaty, the national forest lands have been utilized by members of the Tribe for subsistence hunting in accordance with the Treaty, and it was not until 1960 or 1961 that Oregon officials attempted to interfere with the exercise of those rights; that the number of elk and deer taken by the Indians is a very small fraction of the total harvest; that in spite of a large harvest by sportsmen, the population of both elk and deer is in healthy condition; and that "it is not necessary for the conservation of the game that Oregon's game laws and regulations be applied to hunting by members" of the Tribe.6 The court found further that there are alternative methods of conservation and that the Tribe has expressed a willingness to consider "any conservation data which the Oregon State Game Commission should wish to submit demonstrating a need for limiting or further restricting Indian hunting", but that the Commission has rejected this offer.7
The findings are amply supported by the evidence and are not questioned by appellants. Nor do appellants attempt to distinguish the Maison case. They simply contend that the decision in Maison was erroneous. We adhere to the decision in that case for the reasons therein stated.8
The judgment is affirmed.
1 Article I of the Treaty of June 9, 1855, ratified on March 8, 1859, and proclaimed on April 18, 1859, 12 Stat. 945, provides:
"That the...
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United States v. State of Washington, Civ. No. 9213—Phase I.
...court of appeals for this circuit has done likewise. United States v. Washington, 520 F.2d 676 (1975) (this case); Holcomb v. Confederated Tribes, 382 F.2d 1013 (9 Cir. 1967); Maison v. Confederated Tribes, 314 F.2d 169 (9 Cir. 1963); Makah v. Schoettler, 192 F.2d 224 (9 Cir. On the basis o......
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State v. Buchanan
...forests lands considered open and unclaimed under the terms of a Stevens Treaty), aff'd sub nom. Holcomb v. Confederated Tribes of Umatilla Indian Reservation, 382 F.2d 1013 (9th Cir.1967). See also Hicks, 587 F.Supp. at 1165 (trial court opined that the construction of "open and unclaimed ......
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Skokomish Indian Tribe v. Goldmark
...that Olympic National Park was not included within the Treaty of Olympia hunting right. In Holcomb v. Confederated Tribes of Umatilla Indian Reservation, 382 F.2d 1013, 1014 (9th Cir.1967), the Ninth Circuit affirmed the District Court of Oregon's rulings that the Confederated Tribes of Uma......
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State v. Cutler
...See Confederated Tribes of the Umatilla Indian Reservation v. Maison, 262 F.Supp 871 (D.Or.1966), aff'd sub nom Holcomb v. Confederated Tribes, 382 F.2d 1013 (9th Cir.1967); State v. Stasso, 172 Mont. 242, 563 P.2d 562 (1977). The question of whether privately owned lands would be subject t......