Mason v. Sams

• Decision Date: 09 April 1925
• Docket Number: No. 252.,252.
• Citation: 5 F.2d 255
• Parties: MASON et al. v. SAMS, Superintendent of Indian School, etc.
• Court: U.S. District Court — Western District of Washington

5 F.2d 255 (1925)

MASON et al. v. SAMS, Superintendent of Indian School, etc.

No. 252.

District Court, W. D. Washington, S. D.

April 9, 1925.

Stuart H. Elliott and H. G. & Dix H. Rowland, all of Tacoma, Wash., for plaintiffs.

Thos. P. Revelle, U. S. Atty., of Seattle, Wash., and Wallace W. Mount, Asst. U. S. Atty., of Tacoma, Wash., for defendant.

CUSHMAN, District Judge.

The plaintiffs are members of the Quinaielt Tribe of Indians, residing on the Quinaielt Reservation, sometimes called the Taholah Reservation. They bring this suit to establish their right to fish in the Quinaielt river without payment of a royalty on the fish caught, and the right to sell their fish to whom they please. The bill prays that the superintendent of the Quinaielt agency be enjoined from enforcing regulations made by the Commissioner of Indian affairs, and the Secretary, requiring the payment of a royalty; and that he be enjoined from designating fish buyers to whom alone, under such regulations, plaintiffs would be allowed to sell their fish; and from enforcing all fishing regulations. The defendant moves to dismiss the bill for want of necessary parties.

The Quinaielt river rises in Quinaielt Lake, which lake forms part of the reservation boundary; the lake is fed by streams without the reservation. The Quinaielt river throughout its entire course, flows through the reservation, emptying into the Pacific Ocean. The regulations of which complaint is made were approved by the Assistant Secretary, December 13, 1924; they contain a recital of the purpose of their adoption:

"In order to provide for the conservation and preservation of the salmon supply of the Quinaielt river, and to allow a safe percentage of the fish to reach their spawning grounds in the Upper Quinaielt river and in Quinaielt Lake, and to protect them while spawning, all of which are necessary for the protection of the salmon fishing interests of the Quinaielt Tribe of Indians, the following rules are promulgated in lieu of the rules approved January 3, 1917, and April 9, 1919."

The regulations are applicable to all persons holding, claiming, or operating fishing locations on the Quinaielt river; they provide for fishing locations on both sides of the river, and the distance they are required to be apart. Provision is therein made for marking the channel of the river with stakes and buoys, which stakes are the outside stakes of the respective fishing locations. Fishing gear in the channel of the river, or in front of its mouth, is prohibited. The character and amount of fishing gear (cross-nets, leads and pockets) allowed on the reservation locations is prescribed. The operator of a fishing location, with certain exceptions, is required to fish it in person, and the assistance allowed him is restricted. In certain cases leases by the holder of a location are permitted for a period not exceeding one year. Reservation Indians, alone, are entitled to fishing locations. The assignment of a location is subject to cancellation by the Commissioner of Indian Affairs. Two or more Indians may be assigned one location, but only one allowed to operate at a time; no Indian is allowed to operate more than one location. Transfers of locations are under the exclusive control of the Commissioner. Failure to work a location in a proper manner subjects the location to transfer. Provision is made for a closed period each week. Nets must be lifted at least once in 24 hours. Fishing gear must bear the brand of the owner. Fishing in Lake Quinaielt is prohibited except with hook and line, and that only in accordance with state law. The catching of salmon above the last set-net location approved by the office of Indian Affairs is prohibited at all times. Provision is made for closed seasons for all kinds of net fishing, except during certain hours two days each week for home consumption of the party fishing. The size of the mesh of the nets which may be used is prescribed. The regulations contain the following provisions:

"(21) In the interest of the tribe to whom fishing rights on the Quinaielt Reservation belongs, and for the reason that only a comparatively small number of Indians can be assigned fishing locations, the following percentage of the fishing receipts shall be collected and placed to the credit of the tribe as a royalty. The funds so received to be used for the care of the aged and destitute members of the tribe when authorized by Congress, or for other general agency purposes. The royalties to be collected shall be as follows: All receipts up to $500 to be exempt from royalty. On receipts from $500 up to, and including $1,000, a royalty of 5 per cent. to go to the tribe. On receipts between $2,000 and $3,000, a royalty of 20 per cent. On receipts over $3,000, a royalty of 25 per cent.

"(22) To enable the superintendent to collect the royalties above proposed, all fishermen shall be required to sell their fish to licensed buyers, and each and every licensed buyer shall be required to furnish to the superintendent, at any time upon demand, a sworn statement setting forth the number of fish purchased from each fisherman. Each licensed buyer shall also withhold from the amount due to the fisherman for fish sold and delivered, a sum sufficient to meet the royalty provided for in paragraph 21 hereto, and shall pay over the same to the superintendent in charge of the Quinaielt Reservation on demand. Any violation of the conditions of this paragraph shall be deemed cause to suspend from fishing any fisherman who fails to deliver his fish to a licensed buyer and to suspend from buying any licensed trader who may fail to furnish the information demanded under oath, or who shall fail to withhold sufficient funds to pay the royalty as provided in paragraph 21, or who shall fail to pay over the same to the superintendent on demand. The rendition of a false report or statement as to the number of fish purchased from an Indian fisherman by a licensed buyer shall work an immediate forfeiture of the license of such buyer.

"(23) Violations of any of the foregoing rules shall, upon conviction therefor, be punished by withdrawal of fishing privileges as follows:

"(a) For the first such offense, the fishing privilege of the violator may be withdrawn for a period of not less than one week nor more than one month.

"(b) For the second offense, or for conviction for three or more violations at the same trial, all fishing privileges of the violator shall be withdrawn for not less than one month nor more than one season.

"(c) For the third offense, or for numerous flagrant violations, all fishing privileges of the violator shall be withdrawn for the remainder of the season and the fishing privileges of such holder at said location may be forfeited.

"(d) Where the circumstances justify such action, violations of the above regulations may also be punished by a fine for each offense in addition to the withdrawal of fishing privileges, as provided in sections A, B, and C. Failure to pay fines so assessed shall be deemed cause for withdrawal of fishing privileges within the discretion of the superintendent.

"(e) All gill-nets, set-nets, or other fishing appliances used or employed in the capture of salmon within the prohibited area, as herein set forth, shall be confiscated."

It is also provided that for a violation of the regulations, representatives of the Taholah (Quinaielt) Reservation, and of the Bureau of Fisheries, are authorized to arrest and prosecute accused persons before the court, of Indian offenses, subject to review by the superintendent of the reservation and the Commissioner of Indian Affairs. The superintendent is also authorized to commute sentences of a court, under certain conditions. The sole jurisdiction of the streams entering Lake Quinaielt, declared to be salmon spawning grounds, is recognized as being in the Bureau of Fisheries; joint jurisdiction by the officers of the reservation with the Bureau of Fisheries is asserted over the waters of the lake, and the Quinaielt river above the last set-net location.

The bill is directed against the provisions of sections 21, 22, and 23 above quoted, providing for payment of a royalty on the fish caught and requiring sales of fish caught only to licensed buyers, and the penalties provided to insure the enforcement of this provision. These regulations are asserted to be a violation of the fishing rights granted by the Treaty of 1855 (12 Stat. at Large, 971). Articles II and III of this treaty provide:

"Art. II. There shall, however, be reserved for the use and occupation of the tribes and bands aforesaid, a tract or tracts of lands sufficient for their wants within...