Sohappy v. Smith, Civ. No. 68409
| Court | United States District Courts. 9th Circuit. United States District Court (Oregon) |
| Writing for the Court | BELLONI |
| Citation | 302 F. Supp. 899 |
| Decision Date | 08 July 1969 |
| Docket Number | 68513.,Civ. No. 68409 |
| Parties | Richard SOHAPPY et al., Plaintiffs, v. McKee A. SMITH, Edward G. Huffschmidt, J. I. Eoff, Commissioners, Oregon Fish Commission; Robert W. Schoning, Director, Oregon Fish Commission, their agents, servants, employees and those persons in active concert or participation with them; John W. McKean, Director, Oregon Game Commission, his agents, servants, employees and those persons in active concert or participation with him, Defendants. UNITED STATES of America, Plaintiff, v. STATE OF OREGON, Defendant, and The Confederated Tribes of the Warm Springs Reservation of Oregon; Confederated Tribes & Bands of the Yakima Indian Nation; Confederated Tribes of the Umatilla Indian Reservation; and Nez Perce Tribe of Idaho, Intervenors. |
302 F. Supp. 899
Richard SOHAPPY et al., Plaintiffs,
v.
McKee A. SMITH, Edward G. Huffschmidt, J. I. Eoff, Commissioners, Oregon Fish Commission; Robert W. Schoning, Director, Oregon Fish Commission, their agents, servants, employees and those persons in active concert or participation with them; John W. McKean, Director, Oregon Game Commission, his agents, servants, employees and those persons in active concert or participation with him, Defendants.
UNITED STATES of America, Plaintiff,
v.
STATE OF OREGON, Defendant,
and
The Confederated Tribes of the Warm Springs Reservation of Oregon; Confederated Tribes & Bands of the Yakima Indian Nation; Confederated Tribes of the Umatilla Indian Reservation; and Nez Perce Tribe of Idaho, Intervenors.
Civ. Nos. 68409, 68513.
United States District Court D. Oregon.
July 8, 1969.
James B. Hovis, Yakima, Wash., for Yakima Indian Nation.
Owen M. Panner, David F. Berger, Bend, Or., for Warm Springs Tribe.
Mark C. McClanahan, Dean D. DeChaine, King, Miller, Anderson, Nash & Yerke, Portland, Or., for Umatilla Tribe.
Arthur Lazarus, Jr., Washington, D. C., Robert C. Strom, Craigmont, Idaho, John T. Lewis, The Dalles, Or., for Nez Perce Tribe of Idaho.
Robert A. Bennett, Willner, Bennett & Leonard, Portland, Or., Jack Greenberg, Melvyn H. Zarr, National Office for the Rights of the Indigent, New York City, David R. Hood, MacDonald, Hoague & Bayless, Seattle, Wash., Donald J. Horowitz, Farris, Bangs & Horowitz, Seattle, Wash., Ralph W. Johnson, School of Law, University of Washington, Seattle, Wash., for Richard Sohappy and others.
Robert Y. Thornton, Atty. Gen., George S. Woodworth, Henry Kane, Asst. Attys. Gen., Roy C. Atchison, Asst. Atty. Gen., Portland, Or., for McKee A. Smith and State of Oregon.
OPINION
BELLONI, District Judge.
Fourteen individual members of the Confederated Tribes and Bands of the Yakima Indian Nation filed case No. 68-409 against the members and director of the Fish Commission of the State of Oregon and the Oregon State Game Commission. They seek a decree of this court defining their treaty right "of taking fish at all usual and accustomed places" on the Columbia River
Shortly thereafter the United States on its own behalf and on behalf of the Confederated Tribes and Bands of the Yakima Reservation, the Confederated Tribes and Bands of the Umatilla Reservation composed of the Walla Walla, Cayuse and Umatilla Bands or Tribes, the Nez Perce Indian Tribe and "all other tribes similarly situated" filed case No. 68-513. Upon their individual motions the Warm Springs Tribe, the Yakimas, the Umatillas and the Nez Perce Tribe were permitted to intervene in their own behalf. Following the intervention of the Warm Springs Tribe and upon the inability of government counsel to identify any other tribes who were "similarly situated", the State's motion to strike the reference to such other tribes was granted.
Sohappy v. Smith is brought pursuant to 28 U.S.C. § 1331(a). United States v. Oregon is pursuant to 28 U.S.C. § 1345. In each case the matter in controversy exceeds $10,000. Declaratory judgments are sought pursuant to 28 U. S.C. § 2201. By order of this court the proceedings were consolidated for pretrial procedures and for trial. Fed.R. Civ.P. 42(a).
In both actions the defendants moved that the cases be heard by a three-judge court pursuant to 28 U.S.C. § 2281 and that the actions be dismissed for failure to join the State of Washington as an indispensable party pursuant to Rule 19. Defendants also moved to dismiss No. 68-409 as being a suit against the state in contravention of the Eleventh Amendment of the United States Constitution, and for lack of plaintiffs' standing to sue as individuals. All of the foregoing motions were denied. These cases challenge the validity of certain Oregon Statutes and regulations under the Supremacy Clause of the Constitution of the United States as being contrary to certain treaties of the United States. U.S.Const. Article VI, Clause 2. A three-judge court is not authorized in these cases. Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Jehovah's Witnesses in State of Washington v. King County Hospital et al., 278 F.Supp. 488 (W.D.Wash.1967), aff'd 390 U.S. 598, 88 S.Ct. 1260, 20 L.Ed.2d 158 (1968); Ness Produce Co. v. Short, 263 F.Supp. 586 (D.Or.1966), aff'd 385 U.S. 537, 87 S.Ct. 742, 17 L.Ed.2d 591 (1967). Neither the State of Washington nor any official thereof is an indispensable party to these actions. Fed.R.Civ.P. 19; Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968). No. 68-409 is not a suit against the State of Oregon and is not barred by the Eleventh Amendment of the United States Constitution. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Georgia Railroad and Banking Co. v. Redwine, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335 (1952). The individual plaintiffs in No. 68-409 have an interest in the controversy and have standing to maintain that action to assert that interest.
By agreement of the parties, the cases were heard by the court without a jury and certain issues were segregated for separate hearings and determination. This opinion deals with those issues.
In 1855 the United States negotiated separate treaties with each of the above named Indian tribes. These treaties were ratified and proclaimed by the United States in 1859. Treaty of June 9, 1855, with the Yakima Tribe (12 Stat. 951); Treaty of June 25, 1855, with the Tribes of Middle Oregon (12 Stat. 963); Treaty of June 9, 1855, with the Umatilla Tribe (12 Stat. 945); Treaty of June 11, 1855, with the Nez Perce Tribe (12 Stat. 957). Each of these treaties contained a substantially identical provision securing to the tribes "the right of taking fish at all usual and accustomed places in common with citizens of the Territory."
Most of the argument has centered around the state's interpretation of that provision. It believes that it gives the treaty Indians only the same rights as
I will review some of these factors and declare the rights of the parties.
Subsequent to the execution of the treaties and in reliance thereon the members of said four tribes have continued to fish for subsistence and commercial purposes at their usual and accustomed fishing places. Such fishing provided and still provides an important part of their subsistence and livelihood. Both prior to and subsequent to the treaties, the Indians used a variety of means to take fish, including various types of nets, weirs and gaff hooks.
The policy of the United States to extinguish Indian rights in the Oregon Territory by negotiation rather than by conquest was firmly established in the Act of August 14, 1848 (9 Stat. 323) which established the Oregon Territory. That act declared that nothing in it "shall be construed to impair the rights of persons or property now pertaining to the Indians in said Territory, so long as such rights shall remain unextinguished by treaty between the United States and such Indians. * * *." The act also extended to the Oregon Territory the provisions of the Northwest Ordinance of 1787 which provided, among other things, that "good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent." (1 Stat. 51, Note a)
The treaties with which we are here concerned are parts of the result of that policy. They are not treaties of conquest but were negotiated at arm's length. The word of the United States was pledged. Today, some 114 years later, all of the parties to those treaties are in essential agreement as to their meaning and they have joined in asking this court to confirm that construction. Only the State of Oregon, successor to many of the rights of the United States, disagrees with the interpretation which the parties to the treaties assert here.
It hardly needs restatement that Indian treaties, like international treaties, entered into by the United States are part of the supreme law of the land which the states and their officials are bound to observe. United States v. 43 Gallons of Whiskey (United States v. Lariviere et al.), 93 U.S. (3 Otto) 188, 23 L.Ed. 846 (1876); Worcester v. Georgia, 31 U.S. (6 Peters) 515, 8 L.Ed. 483 (1832). The Supreme Court has on numerous occasions noted that while the courts cannot vary the plain language of an Indian treaty, such treaties are to be construed:
"as `that unlettered people' understood it, and, `as justice and reason demand in all cases where power is exerted by the strong over those to whom they owe care and protection,' and counterpoise the inequality `by the superior justice which looks only to the substance of the right, without regard to technical rules,' Choctaw Nation v. United States, 119 U.S. 1, 7 Sup.Ct. 75, 30 L.Ed. 306; Jones v. Meehan, 175 U.S. 1, 20 Sup.Ct. 1, 44 L. Ed. 49.' United States v. Winans, supra. 198 U.S. 371, 49 L.Ed. 1089, 25 Sup.Ct.Rep. 662" Northern Pacific Railway Co. v. United States, 227 U.S. 355, 366, 33 S.Ct. 368, 57 L.Ed. 544 (1913).
"It is our responsibility to see that the terms of the treaty are carried out, so far as possible, in accordance with the meaning they were understood to have by the tribal representatives at...
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