Makah Indian Tribe v. Schoettler, 12751.
| Decision Date | 27 October 1951 |
| Docket Number | No. 12751.,12751. |
| Parties | MAKAH INDIAN TRIBE et al. v. SCHOETTLER, Director of the Department of Fisheries. |
| Court | U.S. Court of Appeals — Ninth Circuit |
J. Duane Vance, and Bassett & Geisness, all of Seattle, Wash., for appellants.
Smith Troy, Atty. Gen., T. H. Little, Chief Asst. Atty. Gen., John J. O'Brien, Special Asst. Atty. Gen., for appellee.
Before DENMAN, Chief Judge, and STEPHENS and ORR, Circuit Judges.
This is an appeal from a judgment dismissing a complaint of the Makah Indian Tribe seeking injunctive relief against the operation of certain Washington state fishing regulations prohibiting their accustomed fishing in the Hoko River. The regulations in question prohibit all catching of fish in that river save by one pole and line with two single hooks or one artificial bait per person.
The Hoko River is a fresh water stream of some 25 to 50 feet in width in Northwestern Washington, emptying into the Straits of Juan de Fuca at a distance of some 18 miles from the Pacific Ocean and 10 miles easterly from the Makah Indian Reservation. It is a part of the area ceded by the Makahs to the United States in their treaty of 18551 in return for which they received the treaty rights in fishing, hereafter considered.
In September and October the stream has a run of silver salmon which is the subject of the Makahs suit. The respondent's witnesses admit the salmon do not eat after entering the fresh water stream and hence can be caught but rarely on a baited or lured hook. In effect, there is a closing of the stream to all taking of the fall salmon for any purpose, whether for personal or commercial use.
It also appears that the regulation is not necessary for the maintenance of the salmon run in the stream. The run could be fully preserved by a partial stopping of the fishing during the run to permit the upstream movement of a sufficient number for propagation, as is done in other streams.
The only ground given for not making such a regulation is the cost of inspection during that brief portion of the two months' fall run when the stream is to be kept closed to fishing for the passage of the breeding fish. There is no merit in this contention for if the Makahs would have to be inspected to prevent their taking of salmon during the closed portion of the two months, a fortiori, they now require inspection for the full two months in which they are not permitted to take any fish. Aside from the absurdity of this contention, we hold that where a treaty gives the Indians a right to fish, the state cannot deny that right because of the cost of preventing their taking of fish in excess of that right.
Furthermore, it appears that, instead of so closing to all effective Indian fishing in the Quinault, Queets, Quillaute and Hoh Rivers and at the estuaries of the Chehalis and Skagit Rivers, Washington now allows gill net fishing there.
It is also admitted that Washington entered into a cooperative non-compulsory system with the Lummi Indians for regulating fishing on the Nooksack River, the provisions of which the Indians have carried out.
We cannot commend Washington's many years of denying the Makahs the fall salmon necessary for their food and support without at least seeking to make such a cooperative agreement with them. The Director of Fisheries at the time...
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