Skokomish Indian Tribe v. France, 17933.

• Citation: 320 F.2d 205
• Decision Date: 27 July 1963
• Docket Number: No. 17933.,17933.
• Parties: SHOKOMISH INDIAN TRIBE, Appellant, v. E. L. FRANCE, Trustee, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

320 F.2d 205 (1963)

SHOKOMISH INDIAN TRIBE, Appellant, v. E. L. FRANCE, Trustee, et al., Appellees.

No. 17933.

United States Court of Appeals Ninth Circuit.

July 27, 1963.

Little, Palmer, Scott & Slemmons, Keith M. Callow, Frederick Paul, and Malcolm S. McLeod, Seattle, Wash., for appellant.

Skeel, McKelvy, Henke, Evenson & Uhlmann, and William E. Evenson, Seattle, Wash., for appellees, Carlson, Strine, Greeley, Macke, John W. Phillips and Jean S. Phillips.

Gordon, Goodwin, Sager & Thomas, Tacoma, Wash., for appellees, Frances Nalley & Puget Sound National Bank Executor of estate of Marcus Nalley, deceased.

Marshall McCormick, Robert R. Hamilton and Paul J. Nolan, Tacoma, Wash., for appellee City of Tacoma.

Ryan, Askren, Carlson, Bush & Swanson, and Raymond C. Swanson, Seattle, Wash., for appellees Simpson Logging Co.

Before JERTBERG and BROWNING, Circuit Judges and JAMESON, District Judge.

JAMESON, District Judge.

Appellant, an Indian tribe incorporated under an Act of Congress,¹ brought this action to establish a claim of title to a strip of tidelands adjoining its reservation on the Hood Canal and the Skokomish River in western Washington. Appellant's claim is based upon a treaty between the United States and certain Indian tribes dated January 26, 1855, proclaimed April 29, 1859 (12 Stat. 933), and an executive order dated `February 25, 1874. Appellees claim title through various conveyances from the State of Washington. The case was tried before the court without a jury. Pursuant to findings of fact and conclusions of law in favor of appellees, a judgment and decree was entered dismissing plaintiff's complaint with prejudice and quieting title in the respective appellees.

The district court had jurisdiction by virtue of 28 U.S.C. § 1331, as held in Skokomish Indian Tribe v. France, 9 Cir., 1959, 269 F.2d 555. This court has jurisdiction under 28 U.S.C. §§ 1291 and 1294.

The primary issue is whether the tidelands were included within the lands set apart for the use of the Indian tribe under the executive order made pursuant to the treaty. It is conceded that neither the treaty nor the executive order expressly described the tidelands at issue. Article II of the treaty reads in pertinent part:

"There is, however, reserved for the present use and occupation of the said tribes and bands the following tract of land, viz.: the amount of six sections, or three thousand eight hundred and forty acres, situated at the head of Hood\'s Canal, to be hereafter set apart, and so far as necessary surveyed and marked out for their exclusive use; * *." (Emphasis added.)

The executive order of February 25, 1874, reads:

"It is hereby ordered that there be withdrawn from sale or other disposition and set apart for the use of the S\'Klallam Indians the following tract of country on Hood\'s Canal in Washington Territory, inclusive of the six sections situated at the head of Hood\'s Canal, reserved by treaty with said Indians January 26, 1855 (Stats. at Large, vol. 12, p. 934), described and bounded as follows: Beginning at the mouth of the Skokomish River; thence up said river to a point intersected by the section line between sections 15 and 16 of township 21 north, in range 4 west; thence north on said line to a corner common to sections 27, 28, 33 and 34 of township 22 north, range 4 west; thence due east to the southwest corner of the southeast quarter of the southeast quarter of section 27, the same being the southwest corner of A. D. Fisher\'s claim; thence with said claim north to the northwest corner of the northeast quarter of the southeast quarter of said section 27; thence east to the section line between sections 26 and 27; thence north on said line to corner common to sections 22, 23, 26 and 27; thence east to Hood\'s Canal; thence southerly and easterly along said Hood\'s Canal to the place of beginning." (Emphasis added.)

Official surveys of the reservation boundaries were made in 1862 and again in 1873, and the balance of the public lands in the vicinity of Hood's Canal in 1873.

There is no evidence that prior to the commencement of this action in 1948 appellant and its members had asserted title to the tidelands in controversy. The State of Washington began selling the tidelands about 1901. Appellees and their predecessors in title have occupied the lands continuously since their acquisition, have paid taxes thereon, and have made extensive improvements upon portions of the land.

It is the general rule at common law that where the shore or shoreline of a body of navigable water is designated as a boundary, the high water mark is the limit of the boundary line. This rule was established in the early case of United States v. Pacheco, 1865, 2 Wall. 865, 866, 69 U.S. 587, 590, 17 L.Ed. 865, where the Court said:

"The position, that by the bay as a boundary, is meant, in this case, the line of low water mark, is equally unfounded. By the common law, the shore of the sea and, of course, of arms of the sea, is the land between ordinary high and low water mark, the land over which the daily tides ebb and flow. When, therefore, the sea or a bay is named as a boundary, the line of ordinary high water mark is always intended where the common law prevails."

Appellant contends, however, that the ordinary rule should not be applied in this case; that the treaty and executive order defining the reservation are ambiguous; that the ambiguity must be resolved by construing the language of the instruments as they would naturally be understood by the Indians at the time; that the tidelands were essential to the Indians' livelihood and accordingly the Indians must have understood that they were to have the tidelands; that the surveys which excluded the tidelands from the reservation were ineffectual and must be ignored.

The rule applicable to the construction of treaties with Indian tribes was well summarized in Choctaw Nation v. United States, 1943, 318 U.S. 423, 431-432, 63 S.Ct. 672, 677-678, 87 L.Ed. 877, where the Court said:

"Of course, treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties. (Citing cases.) Especially is this true in interpreting treaties and agreements with the Indians; they are to be construed, so far as possible, in the sense in which the Indians understood them, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people.\' (Citing cases.) But even Indian treaties cannot be rewritten or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties. (Citing cases.)" (Emphasis added.)

See also Ute Indians v. United States, 1947, 330 U.S. 169, 67 S.Ct. 650, 91 L.Ed. 823; and Northwestern Bands of Shoshone Indians v. United States, 1945, 324 U.S. 335, p. 353, 65 S.Ct. 690, p. 699, 89 L.Ed. 985; where the Court said:

"Petitioners suggest that in the construction of Indian treaties we, as a self-respecting nation, hesitate to construe language, which is selected by us as guardian of the Indians, to our ward\'s prejudice. `All doubts,\' say petitioners, `must be resolved in their the Indians\'. favor.\' Mr. Justice McLean, concurring in Worcester v. Georgia, 6 Pet. 515 at 582 8 L.Ed. 483, said, `The language used in treaties with the Indians should never be construed to their prejudice.\' But the context shows that the Justice meant no more than that the language should be construed in accordance with the tenor of the treaty. That, we think, is the rule which this Court has applied consistently to Indian treaties. We attempt to determine what the parties meant by the treaty. We stop short of varying its terms to meet alleged injustices. Such generosity, if any may be called for in the relations between the United States and the Indians, is for the Congress."

The pertinent findings of the trial court with respect to the treaty, executive order, surveys, the nature of the tidelands, and the use of the tidelands by the Indian tribe are as follows:

"2. The treaty (Exhibit 3) does not describe the tidelands in issue.

"3. The executive order defines the boundary of the reservation along Hoods Canal as `thence southerly and easterly along said Hood's Canal to the place of beginning'. The executive order does not describe the tidelands in issue in this case, nor purport to include the same in the description of the reservation. (Exhibit 4).

"4. The exterior boundaries of the Skokomish Reservation referred to in the executive order were surveyed and the easterly and northerly boundary along Hood Canal was defined and surveyed as the meander line along such waters as established by such official government surveys. (Defendants' Exhibit A-14-1, Document B; Defendants' Exhibit A-9; Plaintiff's Exhibit 5-f).

"5. The original reservation selected by actual occupancy and use by the government officials in charge of the Indians on Hood Canal did not reach as far north as the common boundary to Sections 35 and 26 in Township 22 North, Range 4 West, but was bounded on the north margin by the south boundary of the A. D. Fisher Donation Claim (Exhibit 7; A10; Plaintiff's Exhibit 12; Defendants' Exhibit A-14-1). The recommendations of the government officials to the President were to enlarge the then reservation by adding thereto the A. D. Fisher Donation Claim. The Fisher Donation Claim included all the Hood Canal frontage in said Section 26 and a portion of Section 35 north of the area up to then selected for and used as a reservation. The executive order legal description included the area in the A. D. Fisher Donation Claim.

"6. Other executive orders of the, same period, both before and after the executive order here in issue, used varied wording to describe boundaries along navigable waters, and in...