Oregon Department of Fish and Wildlife v. Klamath Indian Tribe

• Decision Date: 02 July 1985
• Docket Number: No. 83-2148,83-2148
• Citation: 473 U.S. 753,87 L.Ed.2d 542,105 S.Ct. 3420
• Parties: OREGON DEPARTMENT OF FISH AND WILDLIFE, et al., Petitioners, v. KLAMATH INDIAN TRIBE
• Court: U.S. Supreme Court

473 U.S. 753

105 S.Ct. 3420

87 L.Ed.2d 542

OREGON DEPARTMENT OF FISH AND WILDLIFE, et al., Petitioners,

v KLAMATH INDIAN TRIBE.

No. 83-2148.

Argued Feb. 27, 1985.

Decided July 2, 1985.

Syllabus

By an 1864 Treaty, certain Indian Tribes (now collectively known as respondent Klamath Indian Tribe) ceded their aboriginal title to certain lands in Oregon to the United States, and a reservation was created securing to the Tribe "the exclusive right of taking fish in the streams and lakes, included in said reservation." The Treaty language has been construed in earlier litigation also to reserve to the Tribe the right to hunt and trap game within the reservation. No right to hunt or fish outside the reservation was expressly preserved. Subsequently a dispute arose as to the reservation's boundaries, and after lengthy negotiations concerning the value of land that had been erroneously excluded from the reservation, the Tribe and the Government executed a 1901 Cession Agreement (ratified by Congress) under which the Tribe, upon receiving payment from the Government, ceded some of the reservation land to the Government. The Agreement provided that the Tribe conveyed to the Government "all their claim, right, title and interest in and to" the ceded land, and that "nothing in this agreement shall be construed to deprive [the Tribe] of any benefits to which they are entitled under existing treaties not inconsistent with the provisions of this agreement." Tribe members continued to hunt and fish on the ceded lands, apparently without any assertion of regulatory jurisdiction by the State of Oregon. In 1982 the Tribe instituted this action in Federal District Court against petitioners Oregon Department of Fish and Wildlife and various state officials, seeking an injunction against interference with tribal members' hunting and fishing activities on such lands (other than ceded lands that are now privately owned). The District Court entered summary judgment for the Tribe, declaring that the 1901 Agreement did not abrogate the Tribe's 1864 Treaty right to hunt and fish on the ceded lands free from state regulation. The Court of Appeals affirmed.

Held: In light of the terms of the 1901 Agreement and the 1864 Treaty, and certain other events in the Tribe's history, the Tribe's exclusive right to hunt and fish on the lands reserved to the Tribe by the 1864 Treaty did not survive as a special right to be free of state regulation in the ceded lands that were outside the reservation after the 1901 Agreement. Pp. 766-774.

(a) The 1864 Treaty's language indicates that the Tribe's right to hunt and fish was restricted to the reservation, and the 1901 Agreement's broad language accomplished a diminution of the reservation boundaries. No language in the 1901 Agreement evidenced any intent to preserve special off-reservation hunting or fishing rights for the Tribe, and, in light of the 1901 diminution, a silent preservation of off-reservation rights would have been inconsistent with the broad language of cession as well as with the Tribe's 1864 Treaty agreement to remain within the reservation "unless temporary leave of absence be granted." Pp. 766-770.

(b) Silence in the 1901 Agreement with regard to tribal hunting and fishing rights does not demonstrate an intent to preserve such rights in the ceded land. The historical record of the lengthy negotiations between the Tribe and the Government provides no reason to reject the presumption that the 1901 Agreement fairly describes the entire understanding between the parties. Nor does the absence of any payment expressly in compensation for hunting and fishing rights on the ceded lands demonstrate that the parties did not intend to extinguish such rights in 1901. The Tribe's contention to the contrary rests on its incorrect assumption that the 1864 Treaty created hunting and fishing rights that were separate from and not appurtenant to the reservation. Pp. 770-774.

729 F.2d 609 (9 Cir.1984), reversed.

David Frohnmayer, Salem, Or., for petitioners.

Don Brantley Miller, Boulder, Colo., for respondents.

Justice STEVENS delivered the opinion of the Court.

In 1901 the Klamath Indian Tribe ceded 621,824 acres of reservation land to the United States. The question pre- sented in this case is whether the Tribe thereafter retained a special right to hunt and fish on the ceded lands free of state regulation. In answering that question we consider not only the terms of the 1901 Cession Agreement but also the predecessor 1864 Treaty that established the Tribe's original reservation and certain other events in the history of the Tribe.

I

In the early 19th century, the Klamath and Modoc Tribes and the Yahooskin Band of Snake Indians claimed aboriginal title to approximately 22 million acres of land extending east from the Cascade Mountains in southern Oregon. In 1864 these Tribes (now collectively known as the Klamath Indian Tribe) entered into a Treaty with the United States, ceding "all their right, title and claim to all the country claimed by them" and providing that a described tract of approximately 1.9 million acres "within the country ceded" would be set apart for them, to be "held and regarded as an Indian reservation." 16 Stat. 707, 708.¹ The 1864 Treaty also provided that the Tribes would have "secured" to them "the exclusive right of taking fish in the streams and lakes, included in said reservation, and of gathering edible roots, seeds, and berries within its limits." Ibid.² No right to hunt or fish outside the reservation was preserved.

The boundaries of the reservation were first surveyed by the United States in 1871. Members of the Tribe immediately complained that the surveyor had erroneously excluded large areas of land from the reservation as described in the 1864 Treaty. These complaints continued after the Government resurveyed the boundaries, and slightly enlarged them, in 1888. In response to these complaints, in 1896 Congress authorized a Boundary Commission to determine the amount and value of the land that had been incorrectly excluded from the reservation.³

In October 1896, the three-member Boundary Commission visited the reservation, traveled its disputed boundaries with a Klamath Indian guide, and interviewed a number of Klamath Indians who had participated in the negotiation of the 1864 Treaty. See Klamath Boundary Commission Report (Dec. 18, 1896), reprinted in S.Doc. No. 93, 54th Cong., 2d Sess., 5-19 (1897). These Indians specifically recalled that the parties to the 1864 Treaty had intended to include the Sycan and Sprague River Valleys within the eastern portion of the reservation because those valleys had been an important source of fish and game for members of the Tribe.⁴ Based on its review of the 1864 negotiations and the geographical description provided in the Treaty itself, the Boundary Commission concluded that over 617,000 acres of land had been erroneously excluded from the reservation in previous Government surveys. Id., at 11.

The Boundary Commission determined that the excluded land had an average value of 83.36 cents per acre. This figure took into account "the good timber land and the meadows of the Sycan and Sprague River valleys" as well as the "rocky and sterile mountain ranges, producing very ordinary timber and little grass." ⁵ The Commission's valuation was based on the use of the land for stock grazing and as a source of timber. Its report did not discuss hunting or fishing on the excluded lands, nor did it advert to any valuation for the right to conduct such activities on the land.⁶

Upon receiving the Boundary Commission's report, Congress appropriated funds in 1898 for a precise "resurvey of the exterior boundaries of the Klamath Reservation," and authorized the Secretary of the Interior "to negotiate through an Indian inspector with said Klamath Indians for the relinquishment of all their right and interest in and to" the excluded lands. Act of July 1, 1898, ch. 545, 30 Stat. 571, 592.

The course of negotiations with the Tribe extended over the next two years. The Tribe was assisted by counsel and actively asserted its interests when those interests diverged from the proposals of the United States.⁷ Yet the historical record provided by a number of congressional documents contains no reference to continuation of any special hunting or fishing rights for members of the Tribe after payment for the excluded lands. No objection by the Tribe to resolving the problem by selling the excluded lands to the Government appears anywhere in the record.⁸ Although one Government inspector felt that the price recommended by the Boundary Commission was too high, see n. 7, supra, the Commission's recommendation ultimately was accepted.⁹ The final Cession Agreement was signed by 191 adult male members of the Tribe on June 17, 1901.¹⁰

In the 1901 Agreement, the United States agreed to pay the Tribe $537,007.20 for 621,824 acres of reservation land. In return, the Tribe agreed in Article I to "cede, surrender, grant, and convey to the United States all their claim, right, title and interest in and to" that land. The reservation was thereby diminished to approximately two-thirds of its original size as described in the 1864 Treaty.¹¹ The 1901 Agree- ment also provided in Article IV that "nothing in this agreement shall be construed to deprive [the Tribe] of any benefits to which they are entitled under existing treaties not inconsistent with the provisions of this agreement."

The 1901 Agreement was ratified by Congress in 1906. Act of June 21, 1906, ch. 3504, 34 Stat. 325, 367. Between 1901 and 1906, virtually all of the ceded land was closed to settlement entry and placed in national forests or parks, App. 14, a status much of the land retains to this day. The parties have stipulated that members of the Tribe continued to hunt and fish on the ceded lands, from the time of the cession to the commencement of this litigation in 1982. Ibid. During...