Sohappy v. Hodel
| Decision Date | 03 August 1990 |
| Docket Number | No. 88-3531,88-3531 |
| Citation | 911 F.2d 1312 |
| Parties | David SOHAPPY, Sr., Myra Sohappy, David Sohappy, Jr., Henry Alexander, David Winnier, Michael Brisbois, Michael Hunt, Johnny Kuneki Queampts, Johnny Jackson and The Chiefs and Council of the Columbia River Indians, Plaintiffs-Appellants, v. Donald P. HODEL, Secretary of Interior; Ross Swimmer, Assistant Secretary for Indian Affairs; Stanley Speaks, Area Director for Bureau of Indian Affairs; Casper Weinberger, Secretary of Defense; John Marsh, Jr., Secretary of the Army; Lt. Gen. Joseph Bratton, Chief of the Corps of Engineers; Col. Gary Lord, District Engineer for Oregon, all in their official capacities, and their successors in interest, and the United States of America, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gary M. Berne, Stoll, Stoll, Berne, Fischer & Lokting, P.C., Portland, Or., Jack L. Schwartz, Portland, Me., for plaintiffs-appellants.
Angus E. Crane, Dept. of Justice, Land and Natural Resources Division, Washington, D.C., for defendants-appellees.
Appeal from the United States District Court for the District of Oregon.
Before TANG, BOOCHEVER and KOZINSKI, Circuit Judges.
Lewis and Clark encountered the following scene at an Indian fishing village in 1805:
From time immemorial the junction of the Snake and Columbia rivers had been a favorite gathering place for Indians from throughout the Columbian Plain.... [T]he river teemed each summer with salmon coming in repeated hordes to the forks....
When the Corps of Discovery reached the confluence, the last of that year's migration was ending.... The Indians, too, were leaving.... But, like the living salmon, many still remained, the men busy with spears, nets, and weirs, while the women dexterously slit in half and disemboweled, one by one, the fish brought to them and then laid the pieces on wooden scaffolds to dry. Amazed by the number of the structures, Clark tried to find out how far the people had rafted the timbers used in their building.... Meanwhile both captains took note of the unusual houses. They were simple rectangles, fifteen to sixty feet long. Forked timbers supported the ridgepoles; the roof slopes and walls were covered with large mats made of rushes.... Several families, each with its own fireplace, occupied each house.
D. Lavender, The Way to the Western Sea 280-81 (1988). This case requires us to determine whether, in the Treaties of 1855, the Indians ceded their right to maintain structures of the same general type. Now, more than a century after the treaty was negotiated, the government contends for the first time that they may only maintain camping facilities and must remove them when not actively engaged in fishing and fish processing.
The plaintiffs are individual members of the Yakima or Umatilla Indian Tribes and the Chiefs and Council of the Columbia River Indians. They appeal from the district court's entry of summary judgment and an injunction against them and in favor of the government. The district court held that a regulation of the Department of Interior authorizing the Bureau of Indian Affairs (BIA) to evict the plaintiffs from Indian fishing sites on federally owned land was valid, and entered an injunction requiring the plaintiffs when not engaged in fishing to remove their dwellings from the land. The court dismissed for lack of jurisdiction the plaintiffs' claim for replacement of fishing lands and buildings flooded by the Bonneville Dam Pool.
In 1855, pursuant to a government policy to extinguish Indian title to land in the Pacific Northwest, Isaac Stevens, the Governor of the Washington Territory and Superintendent of Indian Affairs in the Territory, negotiated treaties with the various Indian tribes in the area. See Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658, 661-62, 99 S.Ct. 3055, 3062-63, 61 L.Ed.2d 823 (1979); United States v. Washington, 520 F.2d 676, 682 (9th Cir.1975), cert. denied, 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976); Settler v. Lameer, 507 F.2d 231, 235 (9th Cir.1974); Appropriation Act of March 3, 1853, 10 Stat. 226, 238.
Each treaty concluded as a result of these negotiations contains similar language. The government agreed to set apart certain land as an Indian reservation, pay money, and provide education, medical care, agricultural supplies and tools for the Indians. The Indians agreed to "cede to the United States all their right, title, and claim to all and every part of the country claimed by them" and to "remove to and settle upon the [reservation] within one year after the ratification of [the] treaty" provided "[t]hat the exclusive right of taking fish in the streams running through and bordering said reservation is hereby secured to said Indians; and at all other The plaintiffs have produced evidence, which will be discussed in detail below, that the Indians continued to maintain the customary structures year-round at these sites until the 1930s. In the 1930s the pool resulting from the construction of the Bonneville Dam submerged many of the Indians' usual and accustomed fishing stations. The plaintiffs have produced evidence that the pool also flooded wooden houses, removable dwellings, drying sheds, and fishing platforms, and that the Corps of Engineers told the Indians that the government would replace the land and buildings. The replacement land was to consist of approximately 400 acres.
usual and accustomed stations, in common with the citizens of the United States, and of erecting [suitable houses or temporary buildings] for curing the same...." Treaty With Indians in Middle Oregon, June 25, 1855, 12 Stat. 963-64 (1859); Treaty With the Yakima, 1855, 12 Stat. 951 (1859). Some treaties used the words "suitable houses" or "suitable buildings" while others used the words "temporary houses" or "temporary buildings." See 12 Stat. 927-980
In 1945 Congress appropriated $50,000 for the acquisition of land in Oregon and Washington to replace these fishing grounds. The land acquired was to be transferred to the Secretary of the Interior for the use and benefit of the Indians, and was to be "subject to the same conditions, safeguards, and protections as the treaty fishing grounds submerged or destroyed." Act of March 2, 1945, ch. 19, 59 Stat. 10, 22 (1945 Act). The amount available for the acquisition was later increased to $185,000. Act of June 8, 1955, 69 Stat. 85. Slightly more than 40 acres were acquired. These sites are known as the "in-lieu" sites.
The Indian plaintiffs in this case occupy these sites year-round. Some live in houses or trailers which remain year-round, while others use the sites for year-round storage of trailers and other personal property. There is evidence that the Indians fish year-round. The Department of Interior issued a regulation effective April 9, 1967 requiring prior approval for placing or maintaining structures on the sites. The regulation also provided:
No permit may be issued for any permanent or semi-permanent structure used for dwelling purposes or for parking any house trailer to be occupied on any such site as a dwelling if such structure or trailer installation does not conform to the health, sanitation, and safety requirements of State or local law.
25 C.F.R. Sec. 255.6 (1968). The regulation clearly implied that year-round dwellings were contemplated. In 1969, however, the Department of Interior promulgated a regulation prohibiting many of the structures then existing. The current version of the regulation provides:
Sec. 248.6 Structures.
No dwellings or structures shall be erected, placed, or maintained upon the sites, except that camping facilities may be placed thereon only as herein described and fish drying facilities and fishing platforms may be erected by Indians for use during the fishing season. Facilities for camping on the sites shall be limited to tents, tepees, campers, and mobile trailers. All such tents, tepees, campers, and mobile trailers shall be removed from the sites at any time the owners thereof are not actively engaged in fishing, drying fish, or processing fish by other means.
25 C.F.R. Sec. 248.6 (1987). No evictions were threatened until 1984 when the BIA served eviction notices on several of the plaintiffs.
On November 1, 1988, after this case was briefed, Congress appropriated $2,000,000 for the acquisition and improvement of up to 360 acres of additional land adjacent to the Bonneville Pool to provide fishing access and facilities for the Indians. Act of Nov. 1, 1988, Pub.L. No. 100-581, Sec. 401, 102 Stat. 2938, 2944 (1988).
The plaintiffs filed an administrative appeal, arguing that the evictions were based on a misinterpretation of the regulation and that the regulation was invalid. The Interior Board of Indian Appeals (IBIA) determined that the BIA had correctly interpreted The plaintiffs then filed this suit in the district court. They sought review of the IBIA's decision that it lacked the authority to determine the validity of the regulation, requesting a remand to the IBIA. They also sought review of the agency's eviction action and a declaration that the regulation is invalid because it contradicts the 1855 treaties, the subsequent agreements between the Indians and the Corps of Engineers, and the 1945 Act. In addition, the plaintiffs sought either damages for the value of the land and buildings which the government agreed to acquire to replace the lands submerged by the Bonneville Dam, or an order requiring the government to replace them.
the regulation and that the IBIA did not have authority to determine the validity of the regulation.
The government counterclaimed, seeking to enjoin the plaintiffs from unlawfully occupying the sites and to require them to remove their dwellings, trailers and other structures. The government then filed a motion...
To continue reading
Request your trial
-
Texas v. U.S.
... ... at 133, 120 S.Ct. at 1301. The Secretary, of course, is not authorized to promulgate regulations in violation of federal law, see Sohappy v. Hodel, 911 F.2d 1312, 1320 (9th Cir.1990), yet the Secretarial Procedures stand in direct violation of IGRA, the Johnson Act, and 18 U.S.C. § ... ...
-
Johnson v. Earnhardt's Gilbert Dodge, Inc.
... ... Steppenwolf Prods., Inc., 236 F.3d 487, 494 (9th Cir.2000) (quoting Sohappy v. Hodel, 911 F.2d 1312, 1320 (9th Cir.1990)). If a court should conclude "that a non-moving party is entitled to judgment, `great care must be ... ...
-
Chen v. Allstate Ins. Co.
... ... a police officer had been fully satisfied, the plaintiff's claims regarding whether the officer's actions were unconstitutional were moot); Sohappy v. Hodel, 911 F.2d 1312, 1321 (9th Cir.1990) (a claim the government had broken agreements to replace fishing lands destroyed by a dam was mooted by ... ...
-
Logara v. Jackson Engineering Co.
... ... treaties. See Director, OWCP v. Perini North River ... Associates , 459 U.S. 297, 319, 15 BRBS 62, 77(CRT) ... (1983); Sohappy v. Hodel , 911 F.2d 1312, 1317-19 ... (9 th Cir. 1990). This view is further supported by ... the fact that another commutation ... ...