Maison v. Confederated Tribes of Umatilla Indian Res.

• Decision Date: 15 February 1963
• Docket Number: No. 17139.,17139.
• Citation: 314 F.2d 169
• Parties: H. G. MAISON, Individually and as Superintendent, Dept. 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

314 F.2d 169 (1963)

H. G. MAISON, Individually and as Superintendent, Dept. of State Police of the State of Oregon, et al., Appellants, v. CONFEDERATED TRIBES OF the UMATILLA INDIAN RESERVATION et al., Appellees.

No. 17139.

United States Court of Appeals Ninth Circuit.

February 15, 1963.

Robert Y. Thornton, Atty. Gen. of Oregon, Arthur G. Higgs and Roy C. Atchison, Asst. Attys. Gen., Salem, Or., for appellant.

Frank E. Nash, Mark C. McClanahan, King, Miller, Anderson, Nash & Yerke, Portland, Or., for appellees.

Before HAMLIN, MERRILL and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

This case involves fishing rights of the Confederated Tribes of the Walla Walla, Cayuse and Umatilla Indians under a treaty with the United States.

The District Court had jurisdiction under the provisions of 28 U.S.C. § 1331, relating to federal questions, and 28 U.S.C. § 2201, the Federal Declaratory Judgments Act. The provisions of 28 U.S.C. § 2281, requiring a three-judge court are not applicable and trial was properly had before a single judge.¹ Jurisdiction is conferred upon this court under the provisions of 28 U.S.C. § 1291.

It appears that late in May of 1855 a joint council was held at Camp Stevens in the Walla Walla Valley of the State of Washington between representatives of the United States and certain Indian tribes of Washington and Oregon. At that council the plaintiffs' ancestors were persuaded to accept a treaty containing the following provision:

"Provided, also, That the exclusive right of taking fish in the streams running through and bordering said reservation is hereby secured to said Indians, and at all other usual and accustomed stations in common with citizens of the United States, and of erecting suitable buildings for curing the same; the privilege of hunting, gathering roots and berries and pasturing their stock on unclaimed lands in common with citizens, is also secured to them."²

The controversy here concerns that portion of the treaty provision which relates to the Indians' right to fish outside their reservation "in common with citizens of the United States."

In 1958 the Oregon State Game Commission promulgated regulations prohibiting fishing on tributaries of the Columbia and Snake Rivers during part of the year. Shortly thereafter, the Commission caused three Indians to be arrested for fishing during the closed season in certain Blue Mountain streams that run into the Columbia. It further threatened to have arrested any members of the Confederated Tribes who fished contrary to the laws and regulations of Oregon.

Contending that the state's restriction of their fishing activities was contrary to the rights guaranteed them by treaty, the Confederated Tribes and several of its tribesmen sought a declaratory judgment and injunction. The court's judgment was generally favorable to the Indians:

"Ordered, Adjudged, and Decreed that the Confederated Tribes of the Umatilla Indian Reservation and the members thereof have a right, privilege, and immunity afforded them under the Treaty of June 9, 1855, between said Tribes and the United States of America, to catch salmon and steelhead for subsistence purposes at all usual and accustomed stations on tributaries of the Columbia and Snake rivers in Oregon, including the John Day, Walla Walla, Grande Ronde, and Imnaha river systems, without restriction or control under the game laws of the State of Oregon or regulations issued pursuant thereto."

Although the court declined to issue an injunction, it retained jurisdiction to grant such relief. The defendants have appealed.³

The extent of Indian fishing rights under a treaty between the United States and the Yakima Indians was in issue in United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089 (1905). The court observed that prior to the treaty the Indians had unlimited fishing rights:

"The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed." 198 U.S. at 381, 25 S.Ct. 664.

Explaining the effect of the treaty upon those rights, the court continued:

"New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them — a reservation of those not granted." (Emphasis added). Ibid.

The treaty involved in the instant case is substantially similar to the Yakimas' treaty and was negotiated at the same common council. Thus, the Supreme Court's analysis applies equally here. We hold that the plaintiffs' treaty reserves to them those unimpeded fishing rights which their ancestors had long enjoyed before the treaty, subject only to the qualifications contained within that document. But, the question remains, what are those qualifications?

One of them was pointed out in the Winans case. There it was stated that, because of the provision that the Indians were to fish "in common with citizens," the Indians had not retained an exclusive right to fish at their usual and accustomed stations. Citizens might share it.⁴ United States v. Winans, supra at 381.

Another of the qualifications was explained in Tulee v. Washington, 315 U. S. 681, 62 S.Ct. 862, 86 L.Ed. 1115 (1942) and Makah Indian Tribe v. Schoettler, 192 F.2d 224 (9th Cir. 1951). In the former case it appears that one Tulee, an Indian, was convicted of catching salmon without a license required by a statute of the State of Washington. Tulee claimed the protection of the same treaty that was involved in the Winans case, arguing that it gave him a right to fish without restriction "at all usual and accustomed places" within the ceded area. The State countered with the argument that, because of the phrase "in common with citizens" the appellant's rights were no greater than those of other citizens. The court did not wholly approve either contention, but said:

"We think the state\'s construction of the treaty is too narrow and the appellant\'s too broad; that, while the treaty leaves the state with power to impose on Indians, equally with others, such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here." (Emphasis added). Tulee v. Washington, supra, 315 U.S. at 684, 62 S.Ct. at 864.

We applied the doctrine of the Tulee case in Makah. In that case the State of Washington had, by regulation, prohibited the catching of fish in the Hoko River except with a certain type of gear. As justification for the application of its regulation to the Indians, the State argued that the provision in the Makah Indians' treaty granting to them the right to fish "in common with all citizens" meant that the rights of the Indians were the same, and no greater, than those possessed by other citizens. However, rejecting that argument, we said: "The Supreme Court held in the Tulee case that where a treaty guarantees certain fishing rights to Indians and a state regulation impairs this right, the state must prove that its regulation is `necessary' * * *." Makah Indian Tribe v. Schoettler, supra, 192 F.2d at 226.

Thus, in both the Tulee and Makah cases it was held that the Indians' right to fish is qualified by the state's right to regulate such fishing when necessary for conservation. But, to establish necessity the state must prove two facts: first, that there is a need to limit the taking of fish, second, that the particular regulation sought to be imposed is "indispensable" to the accomplishment of the needed limitation.

Before discussing whether the defendants have sustained their burden of proof it will be helpful to briefly explain the life cycle of the salmon and steelhead fish. Such fish are anadromous; that is to say, they are born in fresh water streams, migrate to and live the greater part of their lives in the ocean and, just before dying, return to the place of their birth to spawn. The fish born in a particular stream are delicately adjusted to its peculiar characteristics and instinctively return to it at the time of the year when successful spawning can occur. Attempts at stocking barren streams have been costly and only sporadically successful, and severe decimation of a run of fish in a particular stream can result in the permanent destruction of its population. In traveling upstream to spawn many debilitating hardships are encountered, including natural predators, disease and water pollution. By the time they reach the spawning ground, the body oils of the fish are practically...