Quinault Tribe of Indians v. Gallagher

• Decision Date: 10 November 1966
• Docket Number: No. 19868.,19868.
• Citation: 368 F.2d 648
• Parties: The QUINAULT TRIBE OF INDIANS OF the QUINAULT RESERVATION IN the STATE OF WASHINGTON, on its own behalf and on behalf of its members, and James Jackson, Alice Chenois, Phillip Martin, John Shale, W. D. Petit, Bennie Charley, Frank Capoeman and Jessie Curley, on their own behalves and on behalf of the members of the Quinault Tribe, Appellants, v. A. M. GALLAGHER, individually and as Sheriff of Grays Harbor County in the State of Washington, John J. O'Connell, individually and as Attorney General of the State of Washington, Albert D. Rosellini, individually and as Governor of the State of Washington, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

368 F.2d 648 (1966)

The QUINAULT TRIBE OF INDIANS OF the QUINAULT RESERVATION IN the STATE OF WASHINGTON, on its own behalf and on behalf of its members, and James Jackson, Alice Chenois, Phillip Martin, John Shale, W. D. Petit, Bennie Charley, Frank Capoeman and Jessie Curley, on their own behalves and on behalf of the members of the Quinault Tribe, Appellants, v. A. M. GALLAGHER, individually and as Sheriff of Grays Harbor County in the State of Washington, John J. O'Connell, individually and as Attorney General of the State of Washington, Albert D. Rosellini, individually and as Governor of the State of Washington, Appellees.

No. 19868.

United States Court of Appeals Ninth Circuit.

September 19, 1966.

On Rehearing November 10, 1966.

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Charles A. Hobbs, Wilkinson, Cragun & Barker, Washington, D. C., LeSourd & Patten, Seattle, Wash., Gladys Phillips, Aberdeen, Wash., for appellants.

John J. O'Connell, Atty. Gen. of Wash., Jane Dowdle Smith, Asst. Atty. Gen., Olympia, Wash., L. Edward Brown, Pros. Atty., Montesano, Wash., for Grays Harbor County.

Fred M. Vinson, Jr., Asst. Atty. Gen., Robt. S. Erdahl, Marvin H. Helter, Attys., Dept. of Justice, Washington, D. C., for amicus curiae.

Before BARNES and HAMLEY, Circuit Judges, and MATHES, District Judge.

HAMLEY, Circuit Judge:

The Quinault Tribe of Indians and several individual members of the tribe are plaintiffs in this action for a declaratory judgment and injunctive relief. They seek a declaration that the state of Washington has no authority to enforce its criminal and civil laws against the Quinault Indians on the Quinault Indian Reservation, and an injunction restraining the enforcement of state laws on the reservation. The defendants are the sheriff of Grays Harbor County, the state Attorney General, and the Governor of the state of Washington. This appeal is from an order entered by the district court granting defendants' motion to dismiss the complaint for lack of jurisdiction and for failure to state a claim upon which relief can be granted.

The Quinault Indian Reservation, created pursuant to the Treaty of Olympia, ratified by Congress in 1859 (12 Stat. 971), is located on the Pacific coast near Grays Harbor in the state of Washington. The boundaries of the reservation were confirmed on November 4, 1873. 1 Kappler 923-924. In 1889, Congress authorized organization of the state of Washington and its admission into the Union. As a condition of admission the enabling act required that the new state disclaim any interest in Indian lands and affirm that such lands would remain under the "absolute jurisdiction and control of the Congress * * *." 25 Stat. 676, 677 (1889). Accordingly, a disclaimer of jurisdiction, substantially identical to the one contained in the enabling act, was included in Article 26 of the Washington state constitution.

In 1953, federal legislation was enacted to enable states to supplant, in large measure, federal jurisdiction over offenses in Indian country, and over civil causes of action which arise in Indian country. Public Law 280, 67 Stat. 588 (1953). Under sections 2 and 4 of this act (18 U.S.C. § 1162, 28 U.S.C. § 1360 1964), Congress granted several states, not including Washington immediate jurisdiction of this kind in designated Indian country located within those states. Under section 6 of the 1953 act, Congress authorized states with constitutional or statutory impediments to the assumption of such jurisdiction to remove these impediments and assume jurisdiction. Under section 7 of the act, Congress authorized any other state to extend jurisdiction of this kind to Indian country lying within those states.

Because of Washington's constitutional disclaimer of jurisdiction over Indians, section 6 of Public Law 280 is applicable to that state. Purporting to act pursuant to the authority conferred under that section, the Washington legislature enacted chapter 240, Laws of 1957 (RCW 37.12).

It was provided in this act, with exceptions not here relevant, that whenever the governor of the state shall receive from the tribal council or other governing body of any Indian tribe a resolution expressing its desire that its people and lands be subject to the criminal and civil jurisdiction of the state, the governor shall issue a proclamation, after which the state shall assume such jurisdiction. Under this act, state jurisdiction thus extended to Indians and Indian lands was to be exerted to the same extent as exerted elsewhere in the state.¹

On April 22, 1958, a body purporting to be the "Quinault Indian Tribal Council" enacted a resolution expressing the desire that the criminal and civil jurisdiction of the state of Washington be extended to include the Quinault Indian Tribe and Reservation. Pursuant to this resolution, the governor of the state, on May 15, 1958, issued a proclamation of the kind called for by section 2 of chapter 240 (RCW 37.12.020), purporting to extend state jurisdiction to that reservation effective July 14, 1958.

After the proclamation was issued, but prior to its effective date, sixty-eight members of the Quinault Indian Tribe purported to repudiate the action of April 22, 1958, referred to above. The proclamation, however, was not then rescinded, and the validity of the proclamation and of the Quinault resolution upon which it was based, were upheld in State v. Bertrand, 61 Wash.2d 333, 378 P.2d 427.

In 1963, the state legislature enacted chapter 36, Laws of 1963, amending chapter 240, Laws of 1957. Under the 1963 act, the state of Washington purported to invoke immediate criminal and civil jurisdiction over some Indians and Indian territory, reservations, country and lands within the state, without the need of a prior Indian resolution and a gubernatorial proclamation. It was provided, however, that with respect to Indians on tribal lands or allotted lands within an established Indian reservation and held in trust by the United States or subject to a restriction against alienation imposed by the United States, such resolution and proclamation procedure must be followed in order to invoke state jurisdiction, except with regard to eight categories of problems. RCW 37.12.010 as amended, 37.12.021.²

The 1963 act contains a savings clause. RCW 37.12.010. It provides that Indian tribes that petitioned for, were granted and became subject to state jurisdiction pursuant to chapter 240, Laws of 1957, on or before March 13, 1963, shall remain subject to state civil and criminal jurisdiction as if the 1963 act had not been enacted. The Quinault Indian Tribe was thus covered by the savings clause.³

This action was commenced on June 5, 1964. Jurisdiction was asserted under 28 U.S.C. § 1343(3), and Rev.Stat. § 1979 (1875) 42 U.S.C. § 1983 (1964) Civil Rights Act, and under 28 U.S.C. § 1331 (1964) (federal question). In ordering dismissal of the action the district court held that jurisdiction to entertain the suit was not conferred by these statutes. Defendants argue that the court erred in so ruling.

With regard to jurisdiction under the Civil Rights Act, plaintiffs assert that they seek vindication of rights secured to them by the Treaty of Olympia, ratified in 1859, the 1889 enabling act, and Public Law 280, enacted in 1953.

The substantive provision of the Civil Rights Act upon which plaintiffs rely is 42 U.S.C. § 1983. This statute provides the basis for causes of action relating to the deprivation of rights, privileges, or immunities secured "* * * by the Constitution and laws. * * *" The jurisdictional provision of the Civil Rights Act which plaintiffs invoke is 28 U.S.C. § 1343(3), which relates to any right, privilege or immunity secured "* * * by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; * * *."

We will assume, without deciding, that rights secured by Indian treaties ratified by Congress, and enabling acts and statutes enacted by Congress, as well as rights secured by the Constitution, are subject to vindication under the provisions of the Civil Rights Act referred to above.⁴ The question remains whether any of these laws secure a right, privilege, or immunity within the meaning of the Civil Rights Act. It may be that freedom of the Quinault Indians from state criminal or civil jurisdiction is, in some sense, a right, privilege or immunity. But plaintiffs must still establish that this freedom is "secured" to them by one or more of the laws upon which they rely.

The provision of the treaty upon which plaintiffs rely is Article II, reading as follows:

"Article II. There shall, however, 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."

Under this provision white men are forbidden to reside on the reservation without permission. But the quoted language does not deal with the matter of jurisdiction over criminal offenses committed within, or civil causes of action arising within, the Quinault Indian Reservation. We hold that this treaty does not provide, for the Quinaults, freedom from state jurisdiction of the kind described. It therefore does not secure to them a relevant right, privilege or immunity which may be vindicated in a civil rights action.

It is also our opinion that neither the enabling act, nor Public Law 280, evince an intent on the part of Congress to bestow upon the Quinaults freedom from state criminal and civil jurisdiction. By virtue of the enabling act, Washington was disabled from asserting jurisdiction over...