Kimball v. Callahan

Citation590 F.2d 768
Decision Date26 January 1979
Docket NumberNo. 77-2628,77-2628
PartiesCharles F. KIMBALL, Stephen L. Lang, Allan Lang, Leonard O. Norris, Jr., James Kirk, and the Klamath Indian Game Commission, an agency of the Klamath Indian Tribe, Plaintiffs-Appellees, v. John D. CALLAHAN, Allan L. Kelly, Pat J. Metke, Frank A. Morre, and James W. Whittaker, each Individually, and as a member of the State Game Commission of the State of Oregon, John McKean, Individually, and as director of the Oregon Game Commission; and Holly Holcomb, Individually, and as director of the Oregon State Patrol and Oregon Game Enforcement Division, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

James H. Clarke (argued), of Dezendorf, Spears, Lubersky & Cambell, Portland, Or., for defendants-appellants.

Daniel H. Israel (argued), Boulder, Colo., for plaintiffs-appellees.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN and ANDERSON, Circuit Judges, and JAMESON, * District Judge.

JAMESON, District Judge:

Appellants, the members and directors of the Oregon State Game Commission and the director of the Oregon State Patrol and Oregon Game Enforcement Division, have appealed from a judgment declaring that appellees, five Klamath Indians and the Klamath Indian Game Commission, and the members of the Klamath Indian Tribe are "entitled to the rights, privileges and immunities afforded under the Treaty of October 14, 1864, between the Klamath Indian Tribe and the United States to hunt, trap and fish within their ancestral Klamath Indian Reservation as it existed at the time of termination in 1954, free from Oregon State game and fish regulations"; and enjoining appellants from "asserting hunting, fishing and trapping regulations against members of the Klamath Indian Tribe while hunting, fishing, and trapping on the former Klamath Indian Reservation as it existed at the time of termination in 1954". The United States has filed an amicus brief in support of appellees.

I. BACKGROUND

The treaty of October 14, 1864, 16 Stat. 707, which created the Klamath and Modoc Reservation, provided that the reservation "shall, until otherwise directed by the President of the United States, be set apart as a residence for said Indians, (and) held and regarded as an Indian reservation . . . ." The treaty secured for the Indians "the exclusive right of taking fish in the streams and lakes, included in said reservation . . . ." On a prior appeal this court interpreted this provision to include also the right to hunt and trap on the reservation. Kimball v. Callahan, 493 F.2d 564, 566 (9 Cir.) Cert. denied, 419 U.S. 1019, 95 S.Ct. 491, 42 L.Ed.2d 292 (1974); (Kimball I ). See also Klamath and Modoc Tribes v. Maison, 139 F.Supp. 634, 637 (D.Or.1956).

In 1954 Congress passed the Klamath Termination Act, which became fully effective in 1961. Act of August 13, 1954, 25 U.S.C. §§ 564-564x. The purpose of the Act was to terminate federal supervision over the trust and restricted property of the Klamath Tribe of Indians, to dispose of federally owned property acquired or withdrawn for the administration of the Indians' affairs, and to terminate federal services furnished the Indians because of their status as Indians. 25 U.S.C. § 564.

Pursuant to the Termination Act the tribal roll was closed on August 13, 1954. No child born thereafter was eligible for enrollment. 25 U.S.C. § 564b. Each person whose name appeared on the final roll had to elect either to withdraw from the tribe and receive the money value of his interest in tribal property or to remain in the tribe and participate in a nongovernmental tribal management plan. § 564d(a)(2). All tribal property was to be appraised and a sufficient amount of it sold to pay those members who elected to withdraw from the tribe and have their interest converted into money. § 564d(a)(3). Members who received the money value of their interests in tribal property "thereupon cease(d) to be members of the tribe . . . ." § 564e(c). The Act expressly provided, however, that nothing in the Act "shall abrogate any fishing rights or privileges of the tribe or the members thereof enjoyed under Federal treaty". § 564m(b).

In February, 1973, the appellees, five Klamath Indians who either personally withdrew or whose ancestors withdrew from the Tribe and had their interest in tribal property converted into money and paid to them, filed suit seeking a declaration of their right to hunt, trap and fish within their ancestral Klamath Indian Reservation free of Oregon fish and game regulation, pursuant to the Treaty of October 14, 1864. In a memorandum opinion dated March 15, 1973, the district court granted defendants' motion to dismiss for failure to state a claim. This court reversed. Kimball v. Callahan, supra. (Kimball I ). 1 Relying on Menominee Tribe of Indians v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), we held that the plaintiffs who elected to withdraw from the Tribe pursuant to the Klamath Termination Act nevertheless retained treaty rights to hunt, fish, and trap, "free of state fish and game regulations on the lands constituting their ancestral Klamath Indian Reservation, including that land now constituting United States national forest land and that privately owned land on which hunting, trapping, or fishing is permitted". 493 F.2d at 569-70.

Following remand a supplemental complaint was filed in which the Klamath Indian Game Commission was joined as a plaintiff. In an opinion entered on September 10, 1976, the district court first recognized that this court in Kimball I found jurisdiction and "that the Indians' rights to hunt, fish and trap on their ancestral reservation are exclusive", and concluded that this court's holdings on these issues were the "law of the case". The district court held further (1) that the rights of Indians to fish, hunt, and trap, free of state regulations, extended to the descendants of persons on the final tribal roll; and (2) that the court had no authority to approve the plaintiffs-appellees' offer to permit state regulation under specified conditions for conservation purposes. The court did suggest that the defendants-appellants approve the Tribe's proposal or negotiate with representatives of the Klamath Indians in an effort to promulgate mutually satisfactory regulations.

Since the filing of the district court's opinion, the appellees have filed a motion for leave to file as an appendix to their brief their "Klamath Tribal Wildlife Management Plan," to which the district court referred in its opinion. Appellants oppose this motion.

II. CONTENTIONS ON APPEAL

Appellants do not seek review of the jurisdiction issue; nor do they "seek reconsideration of the conclusion reached in Kimball I that rights of the Klamath Tribe under the treaty of 1864 survived the Klamath Termination Act". They argue, however, that the "law of the case" does not apply to the issues raised on this appeal. They contend that:

(1) Tribal rights can be exercised only by persons on the final tribal roll of August 13, 1954 who did not withdraw under the Klamath Termination Act, and withdrawn members cannot exercise hunting, fishing, and trapping rights under the 1864 treaty.

(2) Persons born after August 13, 1954 are not entitled to exercise hunting, fishing and trapping rights.

(3) Treaty rights cannot be exercised on land disposed of to the federal government and private purchasers.

(4) The State can "directly regulate the exercise of treaty rights by members of the Klamath Tribe for conservation purposes".

III. RECONSIDERATION OF KIMBALL I
(a) Law of the Case

Preliminary to a consideration of the effect of specific holdings in Kimball I, we note that under the "law of the case" doctrine one panel of an appellate court will not as a general rule reconsider questions which another panel has decided on a prior appeal in the same case. As the court stated in Lehrman v. Gulf Oil Corporation, 500 F.2d 659, 662-63 (5 Cir. 1974), Cert. denied, 420 U.S. 929, 95 S.Ct. 1128, 43 L.Ed.2d 400 (1975):

This laudable and self-imposed restriction is grounded upon the sound public policy that litigation must come to an end. An appellate court cannot efficiently perform its duty to provide expeditious justice to all "if a question once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal". 2

While the "law of the case" doctrine is not "an inexorable command", the prior decision of legal issues should be followed on a later appeal "unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice". White v. Murtha, supra, 377 F.2d at 431-32. 3

Appellants contend that Kimball I is inconsistent with two subsequent controlling decisions: this court's decision in United States v. Washington, 520 F.2d 676 (9 Cir. 1975), Cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), and the Supreme Court's decision in Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977) (Puyallup III ). They also argue that evidence of the legislative history of 1958 amendments to the Klamath Termination Act which was not before this court on the prior appeal, shows Congress intended the Klamath Termination Act to terminate the treaty hunting, fishing, and trapping rights of those Indians who withdrew from the Tribe pursuant to the Termination Act. We cannot agree with either contention.

(b) United States v. Washington

In Kimball I the court held that a Klamath Indian possessing treaty rights to hunt, fish, and trap on the former reservation at the time of the Act's enactment retained those rights even though he relinquished his tribal membership pursuant to the Act. 493 F.2d at 569. Appellants argue that the basis...

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