Russ v. Wilkins, No. C-73-2279-CBR.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Citation410 F. Supp. 579
Decision Date22 March 1976
Docket NumberNo. C-73-2279-CBR.
PartiesJoseph A. RUSS and James Whipple, Plaintiffs, and Covelo Indian Community of the Round Valley Indian Reservation, By and Through its Community Council, a recognized Indian tribal community, Plaintiff in Intervention, v. Richard E. WILKINS, as Fish and Game Warden, California Department of Fish and Game, and G. Raymond Arnett, as Director, California Department of Fish and Game, Defendants.

410 F. Supp. 579

Joseph A. RUSS and James Whipple, Plaintiffs,
and
Covelo Indian Community of the Round Valley Indian Reservation, By and Through its Community Council, a recognized Indian tribal community, Plaintiff in Intervention,
v.
Richard E. WILKINS, as Fish and Game Warden, California Department of Fish and Game, and G. Raymond Arnett, as Director, California Department of Fish and Game, Defendants.

No. C-73-2279-CBR.

United States District Court, N. D. California.

March 22, 1976.


James F. King, Jr., Art Bunce, California Indian Legal Services, Escondido, Cal., for plaintiffs and plaintiff in intervention.

Evelle J. Younger, Atty. Gen., Carl Boronkay, Asst. Atty. Gen., Roderick E. Walston, Charles W. Getz, IV, Deputy Attys. Gen., San Francisco, Cal., for defendants.

MEMORANDUM OF OPINION

RENFREW, District Judge.

This case raises the questions of the exact boundary of the Round Valley Indian Reservation (Reservation) in Mendocino County, California, and whether the State of California has jurisdiction to regulate hunting upon that Reservation.

On April 15, 1973, plaintiffs Russ and Whipple, two enrolled members of the Covelo Indian Community of the Reservation, shot a deer on land they claim is part of the Reservation. The land in question is located within the boundary of the Reservation defined by Congress in 1873, Act of March 3, 1873, 17 Stat. 633 (Act of 1873), but is outside the area selected and retained for the Indians

410 F. Supp. 580
pursuant to the Act of October 1, 1890, 26 Stat. 658 (Act of 1890).1 The plaintiffs were apprehended and the deer confiscated by defendant Wilkins of the California Department of Fish and Game, who denies that the locus of the shooting was within the present Reservation and asserts jurisdiction in any event under California law

Plaintiffs Russ and Whipple brought this action against Wilkins and the Director of the California Department of Fish and Game seeking $100 damages for the value of the confiscated deer and declaratory and injunctive relief establishing the right of plaintiffs and other members of the Covelo Indian Community to hunt and fish on all portions of the Reservation defined by Congress in 1873. Plaintiff in Intervention Covelo Indian Community of the Round Valley Reservation seeks declaratory relief to establish (1) its sole authority to regulate all hunting and fishing on the Indian country of the Reservation, and over the rivers and streams surrounding the Reservation, as to Indians and non-Indians alike, and (2) the exact boundary of the Indian country of the Reservation. It also seeks injunctive relief to restrain defendants from enforcing California Fish and Game Law on the Reservation. The action has been tried on a bifurcated basis, the first phase of which is to determine whether the disputed land is part of the Reservation.

History of the Reservation

The Round Valley2 was originally selected for Indian purposes by the Department of the Interior in 1856. It became the home of Yuki, Wylackie, Nevada, Concow, and Indians of other tribes, many of whom had been displaced from other areas of California. In 1870, pursuant to the Four Reservations Act, Act of April 8, 1864, 13 Stat. 39, President Grant established the Reservation by executive order and expanded the original tract by approximately 6,000 acres.3

A major revision of the Reservation was undertaken by Congress in the Act of 1873. 12,000 acres of Reservation agricultural land were "restored to the public lands". As compensation, 89,000 acres of generally mountainous land to the north were added to the Reservation. The 1873 Reservation was approximately 102,000 acres in size.

The record in this case establishes, however, that the Indians had a very limited enjoyment of the lands allocated to them by Congress. Ranchers and land speculators had begun to enter the area in the 1850s and often laid claim to the lands pursuant to the Swamp Lands Act, 9 Stat. 519, which vested title in the states to lands which were "overflowed" or "swamp" in character and thereby unfit for cultivation. By 1875, over 97,000 acres of the Reservation were occupied by non-Indians, and the 800 Reservation Indians were confined to an area of no more than 5,000 acres. The Committee on Indian Affairs, in investigating this problem in 1885, found that there were only nine settlers who could legitimately claim 160 acres each, and that the rest of the claims were without any legal basis.4 The Reservation Indians were afraid to travel on the Reservation at large, and their cattle were often stolen in large numbers.5

On October 1, 1890, Congress again dealt with the Reservation in "An Act to provide for the reduction of the Round Valley Indian Reservation, in the State of California, and for other purposes" (Act of 1890). The Act of 1890 provided that a portion of the Reservation was to be allotted in ten-acre tracts to individual

410 F. Supp. 581
Indians and that additional lands were to be held for the Indian community in common. (See the "General Indian Allotment or Dawes Act", Act of February 8, 1887, 24 Stat. 388.) All claims by non-Indians within these Indian allotted portions were to be appraised and compensated. The remainder of the Reservation was to be surveyed into 640-acre tracts and put up for sale with the proceeds, after deduction of certain expenses, placed in the Treasury of the United States to the credit of the Indians. The Act appointed a commission to carry out the actual division and allotment of the Reservation. The commission allotted the southwest portion of the Reservation to the Indians and offered the rest at public sale. Only 1,223 acres6 were actually sold out of the 63,600 acres offered and, consequently, Congress later amended the Act of 1890 to reduce the plot sizes from 640 acres to 160 acres in size. Act of February 8, 1905, 33 Stat. 706

The last change in the Reservation was effected pursuant to the Wheeler-Howard Indian Reorganization Act of 1934, 48 Stat. 984, 25 U.S.C. § 463(a). Section 3 of that Act provides, in pertinent part, that the Secretary of the Interior may "restore to tribal ownership the remaining surplus lands of any Indian reservation" previously opened to sale. In 1947 the Secretary of the Interior restored the unsold portions of the Reservation which had been offered for public sale by the Acts of 1890 and 1905. The restored areas totaled about 7,531 acres.

Boundary of the Reservation

The threshold issue before the Court is whether the "reduction" of the Reservation by the Act of 1890 was intended by Congress to restore the northern portion of the Reservation to the public domain or to merely hold it as surplus Reservation land. The Court follows the rule in Mattz v. Arnett, 412 U.S. 481, 505, 93 S.Ct. 2245, 2258, 37 L.Ed.2d 92, 106 (1973), that "a congressional determination to terminate must be expressed on the face of the Act or be clear from the surrounding circumstances and legislative history". Such an intent will not be imputed, and "`doubtful expressions are to be resolved in favor of the weak and defenseless people who are wards of the nation, dependent upon its protection and good faith'". DeCoteau v. District County Court, 420 U.S. 425, 444, 95 S.Ct. 1082, 1093, 43 L.Ed.2d 300, 314 (1975), quoting Carpenter v. Shaw, 280 U.S. 363, 367, 50 S.Ct. 121, 122, 74 L.Ed. 478, 481 (1930). On many occasions Congress has unilaterally terminated sections of reservations by restoring them to the public domain, and indeed had done so to an earlier portion of the Reservation in 1873. At that time Congress used express language to terminate the reservation...

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7 practice notes
  • Pittsburg & Midway Coal Min. Co. v. Yazzie, Nos. 88-2413
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 30, 1990
    ...courts have accepted the view that restoration language is synonymous with extinction of reservation status is found in Russ v. Wilkins, 410 F.Supp. 579 (N.D.Cal.1976). "On many occasions Congress has unilaterally terminated sections of reservations by restoring them to the public domain.........
  • State v. Perank, No. 860243
    • United States
    • Supreme Court of Utah
    • July 17, 1992
    ...courts have accepted the view that restoration language is synonymous with extinction of reservation status is found in Russ v. Wilkins, 410 F.Supp. 579 (N.D.Cal.1976). "On many occasions Congress has unilaterally terminated sections of reservations by restoring them to the public domain.........
  • Russ v. Wilkins, No. 76-2776
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 1, 1980
    ...(1975), held that the Act of 1890 did not change the boundaries of the reservation, as established by the Act of 1873. Russ v. Wilkins, 410 F.Supp. 579 (N.D. Cal. Between the time that the district court rendered its decision and this appeal was taken, the United States Supreme Court, in Ro......
  • State v. Janis, No. 13237
    • United States
    • Supreme Court of South Dakota
    • March 10, 1982
    ...federal control. As in DeCoteau, the present reference to "unallotted lands" has a specific geographical meaning. See Russ v. Wilkins, 410 F.Supp. 579, 583 (N.D.Cal.1976) rev'd, 624 F.2d 914 (9th Cir. 1980). These facts, inter alia, indicate a clear intent to disestablish a portion of the C......
  • Request a trial to view additional results
7 cases
  • Pittsburg & Midway Coal Min. Co. v. Yazzie, Nos. 88-2413
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • May 30, 1990
    ...courts have accepted the view that restoration language is synonymous with extinction of reservation status is found in Russ v. Wilkins, 410 F.Supp. 579 (N.D.Cal.1976). "On many occasions Congress has unilaterally terminated sections of reservations by restoring them to the public domain.........
  • State v. Perank, No. 860243
    • United States
    • Supreme Court of Utah
    • July 17, 1992
    ...courts have accepted the view that restoration language is synonymous with extinction of reservation status is found in Russ v. Wilkins, 410 F.Supp. 579 (N.D.Cal.1976). "On many occasions Congress has unilaterally terminated sections of reservations by restoring them to the public domain.........
  • Russ v. Wilkins, No. 76-2776
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 1, 1980
    ...(1975), held that the Act of 1890 did not change the boundaries of the reservation, as established by the Act of 1873. Russ v. Wilkins, 410 F.Supp. 579 (N.D. Cal. Between the time that the district court rendered its decision and this appeal was taken, the United States Supreme Court, in Ro......
  • State v. Janis, No. 13237
    • United States
    • Supreme Court of South Dakota
    • March 10, 1982
    ...federal control. As in DeCoteau, the present reference to "unallotted lands" has a specific geographical meaning. See Russ v. Wilkins, 410 F.Supp. 579, 583 (N.D.Cal.1976) rev'd, 624 F.2d 914 (9th Cir. 1980). These facts, inter alia, indicate a clear intent to disestablish a portion of the C......
  • Request a trial to view additional results

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