Kimball v. Callahan

• Decision Date: 26 February 1974
• Docket Number: No. 73-1512.,73-1512.
• Citation: 493 F.2d 564
• Parties: Charles E. KIMBALL et al., Plaintiffs-Appellants, v. John D. CALLAHAN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

493 F.2d 564 (1974)

Charles E. KIMBALL et al., Plaintiffs-Appellants, v. John D. CALLAHAN et al., Defendants-Appellees.

No. 73-1512.

United States Court of Appeals, Ninth Circuit.

February 26, 1974.

Daniel H. Israel (argued), Reid P. Chambers, Native American Rights Fund, Los Angeles, Cal., Larry A. Aschenbrenner, Don B. Miller, Klamath Falls, Or., for plaintiffs-appellants.

Raymond P. Underwood (argued), Chief Counsel, Portland Div., Oregon Dept. of Justice, Beverly B. Hall (argued), Asst. Atty. Gen., Portland, Or., for defendants-appellees.

Before KOELSCH, WRIGHT and KILKENNY, Circuit Judges.

OPINION

EUGENE A. WRIGHT, Circuit Judge:

Plaintiffs-appellants are Klamath Indians by racial ancestry and claim rights under the Treaty of October 14, 1864, 16 Stat. 707, which established the Klamath and Modoc Reservation in Oregon. Pursuant to the Klamath Termination Act, 25 U.S.C. §§ 564-564x, plaintiffs or their ancestors elected to withdraw from the tribe and have their interest in tribal property converted into money and paid to them. 25 U.S.C. § 564d(a) (2).¹ In order to pay the withdrawing members of the tribe, part of the original tribal property was sold, the greater part being taken by the United States. It now forms a part of the Winema National Forest and the Klamath Forest National Wildlife Refuge.

Plaintiffs seek a declaratory judgment declaring their right to hunt, trap, and fish within their ancestral Klamath Indian Reservation free of Oregon fish and game regulations, pursuant to the Treaty of October 14, 1864, supra. They also seek an injunction restraining defendants, officers of the State of Oregon, from applying and enforcing Oregon fish and game regulations against them within the boundaries of the old reservation.

The district court denied relief and dismissed the complaint for failure to state a claim upon which relief could be granted. We reverse and grant plaintiffs the declaratory relief they seek.

I JURISDICTION

At the outset, we note that the defendants challenge the jurisdiction of this court and the district court over the subject matter of this action. The district court had jurisdiction if the matter in controversy exceeded the sum or value of $10,000, exclusive of interest and costs, and arose under the Constitution, laws, or treaties of the United States. 28 U.S. C. § 1331. We find jurisdiction. The matter in controversy is the right to be free from state regulations, and the value of this right is measured by the extent to which plaintiffs' treaty rights to hunt and fish would be impaired by state regulation. Yoder v. Assiniboine and Sioux Tribes of Fort Peck Indian Reservation, 339 F.2d 360, 363 (9th Cir. 1964).

More specifically, the amount in controversy is measured by determining the value to each plaintiff of the game and fish he would take if completely free of regulation, less the value of the limited amounts of game and fish he could take if regulated by the state.² Under similar circumstances this court has found jurisdiction under 28 U.S.C. § 1331, thereby implicitly finding a matter in controversy exceeding a value of $10,000. Holcomb v. Confederated Tribes of Umatilla Indian Reservation, 382 F. 2d 1013, 1014 n. 4 (9th Cir. 1967); see also Leech Lake Band of Chippewa Indians v. Herbst, 334 F.Supp. 1001, 1002 (D.Minn.1971). At any rate, we cannot say with "a legal certainty" that the value of the matter in controversy is really less than the jurisdictional amount. City of Inglewood v. City of Los Angeles, 451 F.2d 948, 952 (9th Cir. 1972).³

II THE TREATY RIGHTS

The Treaty of October 14, 1864, 16 Stat. 707, described the boundaries of the Klamath and Modoc Reservation and stated that the described tract "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. . . ." In 1956 the district court judicially interpreted this treaty also to provide the Indians with the exclusive right to hunt and trap on the reservation without state regulation or control. Klamath & Modoc Tribes v. Maison, 139 F.Supp. 634 (D.Or.1956).

Before deciding if these rights survive the Klamath Termination Act, we first consider whether the treaty was correctly interpreted to include hunting and trapping rights.⁴

In Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), the Supreme Court considered the Treaty of Wolf River of 1854, 10 Stat. 1064, which granted the Menominee Indians a reservation in Wisconsin. The treaty made no mention of hunting and fishing rights, but provided that the reservation was to be held by the Indians "for a home, to be held as Indian lands are held." The Court agreed with the Court of Claims that this language includes the right to hunt and fish. 391 U. S. at 406, 88 S.Ct. 1705;⁵ Menominee Tribe v. United States, 388 F.2d 998, 1002, 179 Ct.Cl. 496, 503-504 (1967); State v. Sanapaw, 21 Wis.2d 377, 383, 124 N.W.2d 41, 44 (1963).

We find that the language "set apart as a residence for said Indians, and held and regarded as an Indian reservation" also includes those rights. The specific treaty provision reserving the Klamaths' exclusive right to fish could prompt the argument that their treaty excludes the right to hunt. However, in light of the highly significant role that hunting and trapping played (and continue to play) in the lives of the Klamaths,⁶ it seems unlikely that they would have knowingly relinquished these rights at the time they entered into the treaty. See Menominee Tribe v. United States, 391 U.S. at 406, 88 S.Ct. 1705; State v. Sanapaw, supra, 21 Wis.2d at 383, 124 N.W.2d at 44. Moreover, they enjoyed the exclusive rights to hunt, trap, and fish for almost 100 years with the consent and acquiescence of the State of Oregon. Klamath and Modoc Tribes v. Maison, 139 F.Supp. 634, 637 (D.Or. 1956). These facts, coupled with our duty to construe the treaty favorably to the Indians with whom it was made,⁷ lead us to conclude that the treaty provides exclusive rights to hunt and trap, as well as fish, free of state regulation.

III EFFECT OF THE KLAMATH TERMINATION ACT

In 1954 Congress passed the Klamath Termination Act, which became fully effective in 1961. 25 U.S.C. §§ 564-564x. The express purpose of this Act was to terminate federal supervision over the Klamath Tribe of Indians, to dispose of federally owned property acquired for the administration of Indian affairs, and to terminate the provision of federal services to the Indians solely because of their status as Indians.

Pursuant to the Klamath Termination Act, a final roll of all adult members of the tribe was prepared and published in 1956. 25 U.S.C. § 564b. Under the Act, each person whose name appeared on this tribal roll had to elect whether 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. The Act provides that "members of the tribe who receive the money value of their interests in tribal property shall thereupon cease to be members of the tribe. . . ." 25 U.S.C. § 564e(c).

On the final tribal roll were 2,133 persons. Of these, 1,660 elected to withdraw from the tribe and take their interests in cash. The remaining 473 elected to retain their interests in land and to participate in the land management plan. A part of tribal land proportionate to the number of remaining members was transferred to a private trustee to administer under the statutory management plan. The remainder was sold to pay the withdrawn members, and the majority of this portion is now United States national forest land.

Plaintiffs are five Klamath Indians who withdrew from the tribe. They claim that they nevertheless retain treaty rights to hunt, trap, and fish free of state regulation on the former Indian land that was sold to pay them for their shares in tribal property. Feeling compelled by Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968), we agree.

The Menominee Termination Act 25 U.S.C. §§ 891-902 is similar in several respects to the Klamath Termination Act. Both provide basically for the termination of federal supervision over the property and members of the respective tribes. The Wisconsin Supreme Court held in State v. Sanapaw, 21 Wis.2d 377, 124 N.W.2d 41 (1963), that the hunting and fishing rights of the Menominee Indians were abrogated by Congress in the Menominee Termination Act. The tribe then brought suit against the United States in the Court of Claims to recover damages for the loss of those rights. Menominee Tribe of Indians v. United States, 388 F.2d 998, 179 Ct.Cl. 496 (1967). That court awarded no damages, concluding that the Termination Act did not abrogate the Indians' rights to hunt and fish. 388 F.2d at 1005-1006.

The Supreme Court affirmed the Court of Claims. Menominee Tribe of Indians v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968). The Court noted that the effect of the Termination Act was that all federal supervision over the tribe and tribal property was to end and that "the laws of the several States shall apply to the tribe and its members in the same manner as they apply to other citizens or persons within their jurisdiction." 25 U.S.C. § 899. The Court acknowledged that this language supports a forceful argument that the Termination Act submitted the hunting and fishing rights of the Indians to state regulation and control. The Court, however, reached the opposite conclusion. 391 U.S. at 410, 88 S.Ct. 1705.

Its conclusion was based in large part on Public Law 280 18 U.S.C. § 1162, passed at the same time as the Menominee and Klamath Termination Acts and which became effective seven years before the Termination Acts became...