Moore v. United States

• Decision Date: 25 October 1946
• Docket Number: No. 11281.,11281.
• Citation: 157 F.2d 760
• Parties: MOORE, Director of Fisheries, State of Washington, et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

157 F.2d 760 (1946)

MOORE, Director of Fisheries, State of Washington, et al. v. UNITED STATES.

No. 11281.

Circuit Court of Appeals, Ninth Circuit.

October 25, 1946.

Smith Troy, Atty. Gen., Harold A. Pebbles, Chief Asst. Atty. Gen., and Max Church, Sp. Asst. Atty. Gen., of Washington, for appellants.

David L. Bazelon, Asst. Atty. Gen., J. Charles Dennis, U. S. Atty., of Seattle, Wash., Roger P. Marquis and John C. Harrington, Attys., Dept. of Justice, of Washington, D. C., for appellee.

Kenneth R. L. Simmons, of Billings, Mont., as amicus curiae and attorney for Quillayute Tribe of Indians.

Before DENMAN, BONE and ORR, Circuit Judges.

DENMAN, Circuit Judge.

Appellants, officers of the State of Washington, appeal from decree, which after determining the boundaries of the Quillayute Indian Reservation, orders "That the said defendants appellants and each of them and all persons claiming through or under them are hereby permanently enjoined, restrained, and debarred from interfering in any manner with or asserting any jurisdiction or control whatsoever over fishing activities of members of the Quillehute Tribe of Indians in the Quillehute River, and the tidal waters thereof, as it flows through, borders upon, or touches the lands of the Quillehute Indian Reservation, or in the tidal waters of the Pacific Ocean, as said ocean borders upon and touches said reservation as set aside and described in the Executive Order of February 19, 1889."

The Quillayute River flows through the western Olympic Peninsula into the open Pacific Ocean about 40 miles southerly from the Straits of Juan de Fuca. The portion of the river lying within the lands of the Quillayute Indian Reservation flows almost due southerly for about a mile to the river's mouth, through an estuary having a tidal movement far above the lands in question. The Quillayute town, now called La Push, lies on the easterly side of its mouth. For this distance the westerly boundary of the river is a narrow barren sandspit between the river and the Pacific Ocean,¹ having near its southern terminal at the river's mouth a rocky island useless for any purpose but for fishing or hunting between low and high tide of sea lions seeking the fish entering the river.

Lot 2 and the westerly portion of Lot 1 in Section 28 of the reserved lands cover the bed of the river mouth, at which the estuary narrows to about 500 feet wide, and extend each side along the ocean beaches. That is to say, under the admitted facts, an area of several acres of the river bed at its mouth is in the reservation and beyond the control of the fishing regulations of the State of Washington. Pioneer Packing Co. v. Winslow, 159 Wash. 655, 662, 294 P. 557.

The barren sandspit and rocky island forming the westerly boundary of the river are a part of the reservation. On the opposite side of the river and continuously extending northerly from the lots at the river's mouth and on the river's easterly side are the westerly boundaries of other irregular lots of the reservation contouring on the estuary's shore. The remaining reservation consists of about 500 acres of poor land covered with trees, valued at $5 per acre. It was not suited for agriculture, in which the Indians had no experience.

The situation thus is that several acres of the river's bed at its mouth and the adjoining ocean beach lands have always been in the reservation and from there northerly for a mile the river is enclosed on both sides by the reservation.

The question is: Whether in creating the reservation the United States reserved only the bed of the river at its mouth and the adjoining ocean beach lands, or did it reserve the river's bed for the remaining area within the upland of the reservation and the Pacific tidal waters on the ocean side of the barren sandspit?

The reservation was made pursuant to a treaty made in 1855, July 1, 12 Stat. 971, with the Quillayute and other Indian Tribes whereby the Indians, for a consideration of $25,000.00 payable in annual installments to all of them, relinquished to the United States all their claims to the vast area in the Territory of Washington. In return the United States agreed to reserve for them in the Territory of Washington a tract of land "sufficient for their wants" and "set apart for their exclusive use" upon which "no white man shall be permitted to reside * * * without permission of the tribe and of the superintendent of Indian affairs or Indian agent."

In construing the sufficiency of the Presidential reservation as complying with the treaty provisions for a reservation "sufficient for their wants," that language is "to be liberally construed, doubtful expressions being resolved in favor of the Indians." Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89, 39 S.Ct. 40, 42, 63 L.Ed. 138.

We consider the principles recognized in the Alaska Pacific Fisheries case as controlling here. There, in determining the purposes of the reservation of the Annette Islands with reference to the sufficiency of the wants of the Metlakahtla Indian Tribe, the primary purpose was stated to be to aid the Indians who were "largely fishermen and hunters accustomed to live from the returns of those vocations, and looked upon the islands as a suitable location for their colony, because the fishery adjacent to the shore would afford a primary means of subsistence and a promising opportunity for industrial and commercial development." (Emphasis supplied.) Alaska Pacific Fisheries v. United States, supra, 248 U.S. 88, 39 S.Ct. 41.

We know of no Indian tribe in which the native skills in hunting and fishing were more highly developed into the so-called "American way of life" in industry and commerce, than in the Quillayutes in the brief period from their contact with the white man at the time of their treaty in 1855 and the making of their reservation in 1889. It conveys a wrong impression to stress, as does the government's brief, the mere fact that they were "fish eating" Indians. The fact is that by 1889 the Quillayutes had a small whaling enterprise, a fur seal skin industry, comparable, save in size, with that of the holders of the fur seal license for the Pribilof Islands, and a salmon seining industry with a commerce in the raw and smoked fish.

The Quillayute Tribe, once of five or six hundred, was reduced to about two hundred men, women and children at the time preceding the reservation. From time immemorial their home was the village at the mouth of the Quillayute River. When first visited by white men, a mound of shells showed that part of their diet was made up of the clams dug at the receding tides of the ocean beach of the sandspit and adjacent waters. They were then catching and smoking salmon, of which there was some commerce with other Indian people. A part of their food was the meat of the sea-going mammals, whales, the sea lions and the pelagic seals moving in the Pacific to and from the Pribilofs. Unlike the Eskimos, with their closed-in decked kayaks, they hunted these mammals in the rough waters of the Pacific in open canoes. Obviously they had been an aboriginal seafaring people of great daring and skill in seeking their meat food and skins for their clothing. After their contact with the white people that daring and skill continued in the development of their industry and commerce.

The Quillayute's fur seal industry. The pelagic fur bearing seal herd, after mating on the Pribilofs, moves south along the 100 fathom line off the western coast of North America, passing by the State of Washington. The herd was threatened with extinction by hunters whose vessels followed its migrations. In 1894, within five years of the reservation of the Quillayute lands, a statute was enacted regulating such sealing. From such regulation were excepted Indians "dwelling on the coast of the United States", who carry on pelagic sealing "in canoes or undecked boats propelled wholly by paddles, oars, or sails, and not transported by or used in connection with other vessels, or manned by more than five persons each, in the manner heretofore practiced by the said Indians. * * *" Act April 6, 1894, c. 57, 28 Stat. 52.

The Congress thus recognized and approved a long established practice of these Indians. The evidence shows that they brought their canoes and the carcasses of the seals to the ocean beach of the sandspit. Thereafter the seals were skinned and their hides treated and thereafter sold to the fur traders. In one season their catch and that of the adjoining Makah Tribe was valued at $20,000. Undoubtedly this sealing income was the source of the capital investment of the Quillayutes in the five sealing and whaling schooners owned by members of the tribe.

The Quillayute whaling enterprise. The five schooners of the Indians, manned by them, represent a capital undertaking then unusual in Indian tribes. The evidence shows a take of nine whales in but part of the season of 1888. The flesh of the whales was taken for food. No doubt the carcasses of the whales were taken to the shores of the ocean sandspit.

The Quillayute salmon catch, curing and commerce. What has been said about the sealing and whaling concerns the Indians' commercial use of the ocean side sandspit. It is an obvious inference that the Indians, capable of adopting the white man's...