Settler v. Lameer
| Decision Date | 26 November 1974 |
| Docket Number | 74-1627 and 74-1656,Nos. 71-2364,s. 71-2364 |
| Citation | 507 F.2d 231 |
| Parties | Alvin SETTLER, Petitioner-Appellant, v. Wilson LAMEER, Chief of Police, and O. N. Olney, Chief Judge, Yakima Tribal Court, Respondents-Appellees. Alvin SETTLER, Petitioner-Appellant, v. Wilson LAMEER, Chief of Police, and William Yallup, Chief Judge, Yakima Tribal Court, Respondents-Appellees. Mary SETTLER, Petitioner-Appellee, v. Wilson LAMEER, Chief of Police, and William Yallup, Chief Judge, Yakima Tribal Court, Respondents-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
of Gonzaga Law School (argued), Spokane, Wash., for appellant (appellee in 74-1956).
Tim Weaver (argued), of Hovis, Cockrill & Roy, Yakima, Wash., for appellees (and cross-appellants).
Before TRASK and SNEED, Circuit Judges, and JAMESON, * District judge.
Three actions involving the validity of fishing regulations promulgated by the Tribal Council of the Yakima Indian Nation are joined in this appeal. In causes Nos. 71-2364 and 74-1627 Alvin Settler appeals the denial of his petitions for habeas corpus following separate convictions for violations of tribal fishing regulations in 1967 and 1968. In cause No. 74-1656, which arises out of the same incident as cause No. 74-1627, the Chief of Police and Chief Judge of the Yakima Tribal Court appeal from a decision of the district court granting the petition of Mary Settler for a writ of habeas corpus following her conviction in Tribal court for fishing violations.
The Yakima Reservation was established by the Treaty with the Yakimas, June 9, 1855. Article III of the Treaty states in pertinent part:
'The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them; . . . 12 Stat. 951, 953.
In 1966, the Yakima Tribal Council 1 enacted regulations deemed necessary to promote the conservation of the fishing resources which were reserved in the Treaty of 1855. Resolution T-90-66 among other things established fishing seasons, prohibited fishing in certain areas allocated fishing sites, established a tribal identification system, and specified the methods of fishing that were permissible and the type of boats and gear that could be used. In addition it provided methods of enforcement and penalties. Although purporting to regulate fishing activities of tribal members outside of the reservation, the resolution provided for arrest, seizure of equipment and punishment only within the boundaries of the reservation.
Resolution T-90-66 was amended in 1968 by T-48-68. That resolution provided for off-reservation enforcement of tribal fishing regulations in the following language:
'Any Tribal Game Warden or any Tribal Law Enforcement Officer shall be authorized to enforce the provisions of this and any other regulation of the Yakima Tribe governing the exercise of Treaty fishing rights whether on or off the Yakima Reservation and where violations are committed in his presence, he shall arrest the offender, take him into custody, and seize all fishing gear, boats or motors used by said offender.'
The enforcement of these resolutions 2 with respect ot off-reservation tribal fishing is the basis of the three actions.
Alvin Settler, an enrolled member of the Confederated Tribes and Bands of the Yakima Indian Nation, 3 was convicted on September 29, 1967 by the Yakima Tribal Court of twice violating Tribal Resolution T-90-66 4 and for disobeying the lawful orders of the Tribal Court. 5 It is conceded that on both occasions, Settler was fishing at 'usual and accustomed fishing sites' off the reservation. Although given citations at the site of the violations, Settler was not arrested until he was found within the exterior boundaries of the reservation.
In the habeas corpus proceedings instituted by Settler following his conviction, the district court dismissed the petition for lack of jurisdiction. This court reversed and remanded for a hearing on the merits. Settler v. Yakima Tribal Court, 419 F.2d 486 (9th Cir. 1969). 6
On remand, the district court held:
(1) 'The regulation of the right to fish in the 'usual and accustomed places' off of the reservation granted by the Treaty is an internal affair of the Yakima Indian Tribe . . . Such tribal fishing regulations are binding upon tribal members and are enforceable in the Yakima Indian Tribal Court.'
(2) The state has certain limited rights to regulate off-reservation fishing by Indians, but 'such regulation must be necessary for the conservation of the fishery resources'.
(3) 'Any right the state may have to impose restrictions on off-reservation fishing activities does not preclude the Yakima Indian Tribe from placing restrictions on its own members to control their fishing activities (off reservation) where state regulations are inapplicable, unenforceable, or nonexistent.'
Mary Settler, also a member of the Yakima Indian Nation, was convicted by the Yakima Tribal Court on August 21, 1968 for a violation of Tribal Resolution T-90-66, as amended, and for resisting lawful arrest and attempting escape. 7 Tribal officers, acting pursuant to Tribal Resolution T-58-68, arrested Mary at a 'usual and accustomed' fishing site approximately 56 miles outside the confines of the Yakima Reservation. At the time of Mary's arrest by Tribal Fish and Game Wardens, her fishing gear was seized and is being held pending the final outcome of this action.
As a result of the same incident, Alvin Settler was convicted of a violation of T-90-66, as amended, for knowingly allowing his fishing crew to fish during the Yakima Tribe's closed season and to use illegal fishing gear registered in his name. 8 Unlike Mary, Alvin was arrested within the external boundaries of the reservation.
Petitions for writ of habeas corpus filed by both Mary and Alvin were denied for lack of jurisdiction. On appeal, this court reversed (Settler v. Lameer, 419 F.2d 1311 (9th Cir. 1969)) and remanded for proceedings on the merits.
On remand, the district court, ruling on cross motions for summary judgment in the case of Mary Settler, held that:
(1) the arrest of Mary Settler some 56 miles outside of the Reservation was unauthorized and unlawful. The enforcement of Tribal fishing regulations 'is limited to arrest and seizure on the reservation, . . . even though the Tribe has the authority to govern the exercise of the Indian's right to take fish at the 'usual and accustomed places' located off of the reservation'.
(2) '. . . because the Tribal authorities lacked jurisdiction to enforce Tribal Regulations off the reservation, the seizure of petitioner's personal property incident to petitioner's arrest was unlawful'.
The court denied Alvin Settler's petition, noting that the issues were the same as those in No. 71-2364, supra.
Issues on appeal
The two primary issues presented on appeal are:
(1) Whether the Yakima Indian Nation may enforce its fishing regulations with respect to violations committed by Tribal members outside the reservation by arresting and trying violators upon their return to the reservation;
(2) Whether and under what circumstances the Yakima Indian Nation may enforce tribal fishing regulations by physically arresting violators and seizing their fishing gear at the usual and accustomed fishing places off the Yakima Reservation.
A third issue is raised by Alvin Settler with respect to his conviction by the Tribal Court in 1967. Settler contends that his constitutional rights under the Fifth and Sixth Amendments were violated in that he was tried twice for the same offense and was dinied the assistance of professional counsel.
Mary and Alvin Settler and the State of Washington 9 contend that the Yakima Indian Nation may not regulate off-reservation Tribal fishing activities because (a) in the Yakima Treaty of 1855, the Confederated Tribes of the Yakima Nation did not reserve the right to exercise criminal jurisdiction beyond the territorial confines of the reservation; (b) Congress has not subsequently authorized the Yakima Nation to exercise criminal jurisdiction beyond the territorial confines of the reservation; and (c) any Tribal exercise of criminal jurisdiction outside of the reservation would be in derogation of the sovereignty of the State of Washington.
As part of a government policy to extinguish Indian title to property in the Western United States (Appropriation Act of March 3, 1853, 10 Stat. 226, 238), Isaac Stevens, the first Governor of the Territory of Washington was appointed in 1854 to negotiate treaties with all of the Indian tribes in the Washington Territory. 10 'Governor Stevens was directed that in making the treaties, he should endeavor to unite the 'numerous bands and fragments of tribes into tribes . . ." United States v. Washington, 384 F.Supp. 312 (W.D.Washington, 1974, appeal pending (C.A. 9, No. 74-2440)). Pursuant to these directives, Governor Stevens negotiated a treaty with fourteen tribes and bands of Indians living in Western Washington who by the terms of the Treaty comprise the Yakima Nation. 12 Stat. 951. By that Treaty, the confederated tribes composing the Yakima Nation 'gave up their claim by Indian title to a large expanse of territory over which they roamed in return for the United States' recognition of a portion of the area claimed under Indian title as a reservation for the Yakima Nation . . .'. Whitefoot v. United States, 293 F.2d 658, 659, 155 Ct.Cl. 127 (1961), cert. denied 369 U.S. 818, 82 S.Ct. 629, 7...
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