People v. McCovey

• Decision Date: 26 July 1984
• Docket Number: Cr. 23387
• Citation: 36 Cal.3d 517,205 Cal.Rptr. 643
• Parties: , 685 P.2d 687 The PEOPLE, Plaintiff and Respondent, v. Walter McCOVEY, Jr., et al., Defendants and Appellants.
• Court: California Supreme Court

Page 643

205 Cal.Rptr. 643

36 Cal.3d 517, 685 P.2d 687

The PEOPLE, Plaintiff and Respondent, v. Walter McCOVEY, Jr., et al., Defendants and Appellants.

Cr. 23387.

Supreme Court of California,

In Bank.

July 26, 1984.

Rehearing Denied Aug. 22, 1984.

George Forman, Oakland, under appointment by the Supreme Court, David Rapport, Lester Marston, Stephen Quesenberry, Ukiah, and Anthony M. D'Anna, San Jose, for defendants and appellants.

George Deukmejian, Former Atty. Gen., and John K. Van de Kamp, Atty. Gen., R.H. Connett, Asst. Atty. Gen., Roderick E. Walston, Charles W. Getz, IV, Mary E. Hackenbracht and Bruce S. Flushman, Deputy Atty. Gen., for plaintiff and respondent.

BIRD, Chief Justice.

Is the state preempted from regulating the off-reservation sale or possession for sale of fish caught by Hoopa Valley Reservation Indians on the reservation?

I.

Appellant, Walter McCovey, Jr., is a Yurok ¹ Indian of the Hoopa Valley Reservation located in northern California. This reservation includes a one-mile strip of land on each side of the Klamath River from the river's mouth at the Pacific Ocean to its confluence with the Trinity River. At that point, the reservation widens to a 12-mile square. (See post, at p. 646 of 205 Cal.Rptr., 690 of 685 P.2d) ²

Sometime in September 1980, appellant McCovey caught with a gill net ³ a large quantity of salmon from the Klamath River on the Hoopa Valley Reservation. Shortly thereafter, McCovey telephoned a fish wholesaler in San Jose and offered to sell him the salmon.

After agreeing to locate a buyer for the salmon, the wholesaler learned that it was illegal to sell salmon which had been gill-netted from California waters. He called McCovey back, informed him that it was unlawful to sell the salmon, but agreed to see if another buyer would purchase the fish. The wholesaler then notified an officer of the California Department of Fish and Game about the telephone conversations with McCovey.

Working with a Fish and Game Department officer, the wholesaler contacted one of his customers who agreed to pose as a buyer for the salmon. The "buyer" telephoned McCovey and arranged a purchase of approximately 100 king salmon with a wholesale value of over $3,100. Arrangements were made to deliver the salmon to the wholesaler.

The following day, McCovey and his codefendant, Lance Wilkie, who is not an Indian of the Hoopa Valley Reservation, ⁴ delivered the salmon to the wholesaler. Both appellants were then arrested by Fish and Game Department officers.

McCovey and Wilkie were charged with a felony violation of Fish and Game Code section 8685.6. ⁵ They were also charged with a violation of section 2002, which prohibits the possession of any fish taken in violation of any of the provisions of the Fish and Game Code, and with a conspiracy to violate section 2002.

Appellants moved to dismiss the charges under Penal Code section 995. The trial court granted the motion to dismiss the section 2002 counts, but denied it with respect to the section 8685.6 count. Following the submission of the case on the preliminary hearing transcript, the trial court found appellants guilty of violating section 8685.6. McCovey was fined $2,500 and placed on probation for three years on the condition that he serve ninety days in the county jail. Wilkie was fined $500 and placed on probation for one year. ⁶ McCovey and Wilkie appeal.

Appellants present three principal, interrelated contentions. First, they argue that state prosecution of reservation Indians for off-reservation conduct involving fish caught on a reservation infringes upon the Indians' federally protected right to fish on the reservation. Next, they assert that Department of the Interior regulations which govern Indian fishing on the reservation preempt the state from prosecuting Hoopa Valley Reservation Indians for the off-reservation possession or sale of reservation-caught fish. Finally, they contend that section 8685.6 as applied to reservation Indians for sale of reservation-caught fish impermissibly discriminates against and burdens Indian commerce in violation of the federal Constitution. (U.S.Const., art. I, § 8, cl. 3.)

Appellant McCovey also maintains that the imposition of a felony sentence on a Hoopa Valley Reservation Indian for a violation of section 8685.6 constitutes cruel and/or unusual punishment in violation of the federal and state Constitutions. (U.S. Const., 8th Amend.; Cal.Const., art. I, § 17.) In addition, appellant Wilkie urges that if the state were without jurisdiction to prosecute McCovey, Wilkie's conviction should also be reversed.

II.

A brief history of the Hoopa Valley Reservation is useful to place this case in context.

Legislation passed by Congress in 1853 authorized the President "to make ... reservations ... in the State of California ... for Indian purposes." (10 Stat. 238 (Mar. 3, 1853); see Mattz v. Arnett, supra, 412 U.S. at p. 487, 93 S.Ct. at p. 2249.) The Klamath River Reservation was established by executive order two years later. (Ibid.) In 1864, Congress passed an act authorizing the President to set apart no more than four tracts of land in California "for the purposes of Indian reservations." (13 Stat. 40 (Apr. 8, 1864); see Mattz v. Arnett, supra, 412 U.S. at p. 489, 93 S.Ct. at p. 2250.) Pursuant to that act, the Hoopa Valley Reservation was formally set aside for Indian purposes by executive order in 1876. (Id., at p. 490, fn. 9, 93 S.Ct. at p. 2250, fn. 9.)

In 1891, the reservation "was extended so as to include all land, one mile in width on each side of the [Klamath] river, from 'the present limits' of the [original] Hoopa Valley Reservation to the Pacific Ocean. The Klamath River Reservation, or what had been the reservation, thus was made part of the Hoopa Valley Reservation, as extended." (Id., at p. 493, 93 S.Ct. at p. 2252; see also Elser v. Gill Net Number One (1966) 246 Cal.App.2d 30, 33-34, 54 Cal.Rptr. 568 and Donnelly v. United States (1913) 228 U.S. 243, 253-259, 33 S.Ct. 449, 451-453, 57 L.Ed. 820, for additional historical background on the establishment of the Hoopa Valley Reservation.)

Today, the Hoopa Valley Reservation consists of 3 sections: (1) the Old Klamath River Reservation, a 2-mile wide strip of land, 1 mile in width on each side of the Klamath River, which extends 20 miles inland from the mouth of the river on the Pacific Ocean; (2) the original Hoopa Valley Reservation, a 12-mile square area, containing approximately 89,000 acres, which lies on both sides of the Trinity River; and (3) a 30-mile strip along the Klamath River which connects (1) and (2). (See Arnett v. Five Gill Nets (1975) 48 Cal.App.3d 454, 456-458, 121 Cal.Rptr. 906, cert. den. (1976) 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 757; Elser v. Gill Net Number One, supra, 246 Cal.App.2d at pp. 33-34, 54 Cal.Rptr. 568.)

In 1977, in order to fill the regulatory vacuum created by the lack of a tribal governing body, the Department of the Interior (hereafter Department) promulgated interim regulations governing Klamath River fishing by Indians of the Hoopa Valley Reservation. (42 Fed.Reg. 40904-40905 (Aug. 12, 1977).) Those regulations expressly permitted limited commercial fishing. (Id., at p. 40905, §§ 258.1(c), 258.5.) The preamble to the regulations promulgated a year later expressly recognized that the federally reserved Indian fishing right included the right to fish for commercial purposes. (43 Fed.Reg. 30048 (July 13, 1978).) However, as the preamble noted, the right was not absolute: "[T]he Indians must be allowed to fish commercially as long as statistics show that there can be effective conservation, with simultaneous regulation of other forms of fishing by all persons." (Ibid.)

In 1979, in light of decreased salmon runs, the Department promulgated new regulations which imposed a moratorium on commercial fishing and the sale of fish caught on the reservation. ⁷ (44 Fed.Reg. 17144-17151 (Mar. 20, 1979).) However, the Department reaffirmed the existence of the right to fish commercially and guaranteed that it could be exercised when salmon runs increased. (Id., at p. 17146.) The 1979 moratorium remains in effect, having been renewed in successive versions of the regulations. (25 C.F.R. § 250.8(d), (e).)

III.

This court must decide whether California is preempted from regulating the off-reservation possession or sale of fish caught by Hoopa Valley Reservation Indians on the reservation.

"[T]here is no rigid rule by which to resolve the question whether a particular state law may be applied to an Indian reservation or to tribal members." (White Mountain Apache Tribe v. Bracker (1980) 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 [hereafter White Mountain Apache Tribe].) However, the traditional notions of Indian self-government which are "deeply engrained in our jurisprudence" provide a crucial " 'backdrop' " in answering such a question. (Id., at p. 143, 100 S.Ct. at 2583.)

The United States Supreme Court has cautioned that "[i]t must always be remembered that the various Indian tribes were once independent and sovereign nations, and that their claim to sovereignty long predates that of our own Government." (McClanahan v. Arizona State Tax Comm'n. (1973) 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129.) The status of these tribes has been described as " ' "an anomalous one and of complex character," ' for despite their partial assimilation into American culture, the tribes have retained ' "a semi-independent position ... not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people, with the power of regulating their internal and social relations...." ' " (White Mountain Apache Tribe, supra, 448 U.S. at p. 142, 100 S.Ct. at p. 2583.)

Congress, however, has broad power to regulate Indian tribes under the Indian Commerce Clause. Thus, "[t]he right of tribal self-government is ultimately dependent on and...