State v. Antoine

• Decision Date: 12 July 1973
• Docket Number: No. 42420,42420
• Citation: 511 P.2d 1351,82 Wn.2d 440
• Parties: The STATE of Washington, Respondent, v. Alexander J. ANTOINE, and Irene F. Antoine, his wife, Appellants.
• Court: Washington Supreme Court

Page 440

82 Wn.2d 440

511 P.2d 1351

The STATE of Washington, Respondent, v. Alexander J. ANTOINE, and Irene F. Antoine, his wife, Appellants.

No. 42420.

Supreme Court of Washington, En Banc.

July 12, 1973.

Ziontz, Pirtle & Morisset, Seattle, for appellants.

Granville Egan, Pros. Atty. for Ferry County, Republic, for respondent.

ROSELLINI, Associate Justice.

The appellants were charged in superior court with the offenses of hunting during closed season (RCW 77.16.020) and possession of deer during closed season (RCW 77.16.030). The offenses occurred on unallotted nonIndian land in what was once the north half of the Colville Indian Reservation. By way of defense, the appellants asserted that they were not subject to the state's game protection laws, immunity from such laws having allegedly been promised them by the United States government under the terms of an agreement signed by agents of the government and by members of their Indian tribe in 1891. The trial court held that the agreement was not intended to afford such immunity from state laws, and entered judgment and sentence, from which this appeal has been taken.

The appellant husband is an enrolled member of the Confederated Tribes of the Colville Reservation, and it is not questioned that he and his wife are beneficiaries of the agreement in question, which was executed when the Indians residing on the reservation, for a stated price, ceded their right of occupancy and use of the northern half of the reservation to the United States, owner of the fee. ¹ Under the terms of the agreement certain lands in the ceded portion were to be allotted to Indians then residing on the northern half. A school and a millsite and buildings were to be provided on the ceded lands.

Article 6 of the agreement stated:

It is stipulated and agreed that the lands to be allotted as aforesaid to said Indians and the improvements thereon shall not be subject, within the limitations prescribed by law, to taxation for any purpose, national, state or municipal; ² that said Indians shall enjoy without let or hindrance the right at all times freely to use all water power and water courses belonging to or connected with the lands to be so allotted, and that the right to hunt and fish in common with all other persons on lands not allotted to said Indians shall not be taken away or in anywise abridged.

It is upon the final clause of this article that the appellants place their reliance. It is their theory that, before the northern half of the reservation was ceded under the terms of this agreement, their ancestors had the exclusive, absolute, and unrestricted right to hunt and fish upon the entire reservation, and that it was this right which the agreement was intended to preserve. The appellants do not claim to have succeeded to the interest of an allotment Indian, but it is their assumption that this provision was intended to guarantee to all the Indians on the reservation--and not just to the allotment Indians--the right to hunt on the ceded half. The state does not dispute this interpretation.

We think a plausible argument could be made that this clause, like all the other clauses in this article, was intended to guarantee to the allotment Indians the right to hunt and fish upon the southern half of the reservation, inasmuch as they would no longer be living on the reservation proper and might have their right to hunt there questioned, if it was not clarified in the agreement. Also, since it was contemplated that the unallotted lands in the ceded portion of the reservation would be opened to settlement, ³ and it was reasonably to be foreseen that the settlers might fence their land and exclude the Indians and others from hunting thereon, the allotment Indians might have no place to hunt, outside their individual allotments, unless they could hunt upon the reservation.

However, since the state has not seen fit to adopt or argue this theory and since we also find merit in the theory which the state does advance, we do not rest our decision here upon that possible interpretation of the agreement. It is the state's position that the federal government was not authorized to curtail the state's right to exercise its police power, in this contractual agreement, and that it did not purport to do so.

The appellants, on the other hand, while acknowledging that the instrument in question is in fact a contract and that the executive branch was not authorized to make treaties with the Indians at the time the agreement was entered into, ⁴ nevertheless insist that the agreement should be given the full force and effect of a treaty--in other words, that it constitutes the supreme law of the land--and further maintain that the plain import of its words is that the right to hunt and fish on the ceded and unallotted lands should never be subject to state regulation.

We cannot agree with the proposition that there is no significant difference between a contract and a treaty. A treaty is defined in Black's Law Dictionary (4th rev. ed. 1968), citing Edye v. Robertson, 112 U.S. 580, 5 S.Ct. 247, 28 L.Ed. 798 (1884); Ex parte Ortiz, 100 F. 955 (C.C.D., Minn.1900); and Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274, 46 L.R.A.,N.S., 397 (1912), as follows:

An agreement, league, or contract between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the several sovereigns or the supreme power of each state.

A treaty must be entered into with the advice and consent of the senate and must be ratified by two-thirds of the senators present. U.S.Const. art. 2, § 2. Once ratified, a treaty becomes the supreme law of the land. U.S.Const. art. 6. A treaty which deals with a matter of national and international concern may contain provisions, binding upon the states, which the Congress, without such treaty, would have no power to enact. Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920). States are forbidden to enter into treaties. U.S.Const. art. 1, § 10.

A contract, on the other hand, can be enforced only against those party to it. McIntyre v. Johnson, 66 Wash 567, 120 P. 92 (1912). See 17 Am.Jur.2d Contracts §§ 1, 15 (1964). A state is bound by contracts executed in its behalf by its duly authorized agents, provided the contract does not contravene the constitution and does not divest the state of its essential attributes of sovereignty or its governmental powers. 81 C.J.S. States §§ 112--13 (1953). 49 Am.Jur. States, Territories, and Dependencies § 62 (1943). But before a contract liability can be imposed upon a state, there must be a contractual obligation on its part.

The United States, as a body politic, and as an incident of its sovereignty, may enter into contracts, express or implied, appropriate to the just exercise of its constitutional powers, if not prohibited by law, even though there is no special statute authorizing the government to contract. 91 C.J.S. United States §§ 81--82 (1955).

There is no argument by the state that the contract between the United States and the Indians of the Confederated Tribes was made without authority. The appellants, on the other hand, do not suggest that the state was a party to the contract or that the agents of the federal government who negotiated and signed the contract were authorized to act on behalf of the state.

Did the parties nevertheless intend that the state should be considered a party to this agreement?

Looking to the terms of the agreement, we find that the promises made by the federal government, setting aside for the moment the clause relating to hunting and fishing rights, were all undertakings which it was within the power of the federal government to perform. These included the payment of a stated sum for the ceded land, the allotment of certain lands to the Indians living on the north half of the reservation, the setting aside of sites and the building and maintenance of schools and other structures on the ceded land, the guarantee of water rights on the allotted land, and the exemption from taxation of the allotted land 'within the limitations prescribed by law.'

The latter provision is the only one in the agreement which makes any reference to state or local government and the provision itself is in harmony with article 26 of the constitution of the state of Washington. In making this promise, then, the United States did not purport to invade any reserved power of the state but merely set forth in the agreement a right which was already guaranteed under the state constitution.

Thus, nowhere in the agreement did the federal government purport to act on behalf of the state of Washington or to cede any of its jurisdiction. The state itself could not have lawfully made such a cession had it been a party to the agreement. Yet the appellants earnestly contend that the court must read into the language promising the continuation of hunting and fishing rights a promise that the state of Washington would not exercise its right, under the police power, to regulate hunting upon those ceded lands which were to become a part of the public domain.

It was implicitly recognized by the United States Supreme Court in United States v. Pelican, 232 U.S. 442, 34 S.Ct. 396, 58 L.Ed. 676 (1914), that lands within the public domain which are not subject to the exclusive jurisdiction of the federal government are subject to the jurisdiction of the state. In that case, the defendant, charged with a crime under federal law, took the position that he was not subject to federal jurisdiction because the crime was not committed on the Colville reservation but rather was committed on allotted lands located outside the diminished reservation.

In holding that the allotted lands were Indian country and therefore subject to federal jurisdiction, the Supreme Court took cognizance of the fact that Congress in the act of July 1, 1892, c. 140, 27 Stat. 62,...