Pioneer Packing Co. v. Winslow

• Decision Date: 29 December 1930
• Docket Number: 22519.
• Citation: 159 Wash. 655,294 P. 557
• Parties: PIONEER PACKING CO. v. WINSLOW, County Game Warden.
• Court: Washington Supreme Court

294 P. 557

159 Wash. 655

PIONEER PACKING CO. v. WINSLOW, County Game Warden.

No. 22519.

Supreme Court of Washington

December 29, 1930

Department 1.

Appeal from Superior Court, Grays Harbor County; J. M. Phillips Judge.

Suit by the Pioneer Packing Company against Jack Winslow, County Game Warden. Judgment for plaintiff, and defendant appeals.

Affirmed.

John H Dunbar and V. L. Bradeson, both of Olympia for appellant.

Stuart H. Elliott and H. G. & Dix H. Rowland, all of Tacoma, and John C. Hogan and Theodore B. Bruener, both of Aberdeen, for respondent.

MAIN J.

This action was brought for the purpose of restraining the county game warden of Grays Harbor county from interfering with the right of the plaintiff to buy game fish, namely, steelhead on the Quinault Indian Reservation, and ship them out of the state. The trial was to the court without a jury, and resulted in a judgment sustaining the claimed right to injunctive relief, from which the defendant appeals.

The material facts are not in substantial dispute, and may be stated as follows: The respondent, Pioneer Packing Company, is a corporation, with its principal place of business in Aberdeen, where it is engaged in buying and selling fish. The New England Fish Company is a corporation, with its principal place of business in New York City, where it is a dealer in fish. During the month of December, 1929, the respondent purchased from the Quinault Indians on their reservation, and had in its possession, about 1,724 pounds of steelhead salmon, or fourteen boxes, which fish were caught by the Quinault Indians in the Quinault river, which flows across the Quinault Indian Reservation. The fish were placed in the boxes and iced on the reservation. The boxes were there stenciled on the outside with the address of the New England Fish Company, New York City. The fish were then turned over to the Star Transfer Company, which hauled them from Tahola on the reservation to the express company's office in the city of Aberdeen, a distance of something like forty or fifty miles, for shipments to New York City. The respondent paid the transfer company for the hauling of the fish from Tahola to Aberdeen. When the transfer company delivered the fish to the express company, it received a receipt therefor. The waybills which accompanied the fish to New York were made out at the express office at Aberdeen. While the fish were at the express office, they were seized by the county game commissioner of Grays Harbor county, because at the time, under the law of this state, it was unlawful to have steelhead in one's possession for the purpose of shipping them out of the state.

The first question is whether the Indians have title to the fish in the river on the reservation, or whether the title thereto is in the state in trust for the benefit of all the people thereof, with merely a license on the part of the Indians to catch them.

The respondent contends that the title to the fish is in the Indians, and the appellant contends that they had merely a license to fish. To determine this question requires an examination of the treaty made with the Quinault Indian tribe by which they ceded their lands to the United States with a reservation to be set off to them by proclamation of the President of the United States. This treaty was entered into by the United States and the Quinault Indian tribe July 1, 1855 (12 Stat. 971), which treaty was ratified by the Senate of the United States March 8, 1859. By the treaty the Indians 'ceded' to the United States a vast territory, including nearly one hundred miles of Pacific coast, extending approximately from a few miles south of Cape Flattery to a few miles north of Grays Harbor, and extending back from the shores of the Pacific ocean forty miles or more to the center of the coast range of mountains. By the treaty the Indians 'reserved' a sufficient area for their wants, to be selected by the President of the United States, as stated. In accordance with the provisions of the treaty, the President of the United States, on November 7, 1873, promulgated an executive order by which the present Quinault Indian Reservation was 'withdrawn from sale and set apart for the use of the Quinaielt, Quillehute, Hoh, Quit and other tribes of fish-eating Indians on the Pacific coast.' Article 1 of the treaty provides that the Indians 'hereby cede, relinquish, and convey to the United States all their right, title, and interest in and to the lands and country occupied by them, bounded and described as follows. * * *' Article 2 provides that there shall be 'reserved, for the use and occupation of the tribes and bands aforesaid, a tract or tracts of land sufficient for their wants within the Territory of Washington, to be selected by the president of the United States, and hereafter surveyed or located and set apart for their exclusive use, and no white man shall be permitted to reside thereon without permission of the tribe and of the superintendent of Indian affairs or Indian agent. * * *' By these articles of the treaty there was the ceding of a larger tract of land, all then owned by the Indian tribes, with a reservation of lands out of the larger area to be set aside by an executive proclamation.

The federal courts have held that, where there is a ceding and reservation under a treaty of this kind, the Indians own the land subsequently designated in the executive order in the same title and with the same right as they previously owned the entire area ceded.

In Gaines et al. v. Nicholson et al., 50 U.S. (9 How.) 356, 13 L.Ed. 172, it was held that, where there were reservations in Indian treaties of specific tracts of land, which were afterwards found to be sections set apart for school purposes under the general law, the reservees (the Indians) had the better title. In that case the holding was based upon a specific reservation in the treaty of particular lands, and the court there refrained from expressing any opinion where the reservee claimed under a treaty which did not designate for him a specific tract of land. The question reserved in that case is the one which is presented in the case now before us for decision.

In United States v. Romaine et al., 255 F. 253, 260, the Circuit Court of Appeals for the Ninth Circuit held that, where there was a treaty which ceded Indian lands to the United States, with reservations of lands to be set aside to them by executive order, the title to the lands subsequently so set aside to them was not acquired through treaty of cession, but the Indians held under their original title. It was there said:

'It is not to be supposed that in making the treaty the government intended to take from the Indians any of the rights they had theretofore enjoyed in the island of Chahchoo-sen. In Gaines v. Nicholson, 9 How. 356, 364, 13 L.Ed. 172, the court said of the Indians' right of occupancy in such a reservation:

"It was so much carved out of the territory ceded, and remained to the Indian occupant, as he had never parted with it. He holds, strictly speaking, not under the treaty of cession, but under his original title, confirmed by the Government in the act of agreeing to the reservation.'

' In United States v. Winans, 198 U.S. 371, 383, 25 S.Ct. 662, 49 L.Ed. 1089, the court held that the right of taking fish in the Columbia river and the right of erecting temporary buildings for curing them, reserved to the Yakima Indians by treaty, was not a grant of right to the Indians, but a reservation by them of rights already possessed and not granted away by them. In the Enabling Act, by which the territory of Washington was admitted into the Union (Act Feb. 22, 1889, c. 180, § 4, 25 Stat. 676), the people of the newly created state were required to agree and declare that they forever disclaim all right and title--'to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States and said Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States."

In Winters v. United States, 207 U.S. 564, 28 S.Ct 207, 208, 52 L.Ed. 340, the court in effect decided the question which had been reserved in the previous case of Gaines et al. v. Nicholson et al., 50 U.S. (9 How.) 356, 13 L.Ed. 172, supra, and held that, where a tract of land, the property of the United States, was reserved...