State v. Edwards

• Decision Date: 11 December 1936
• Docket Number: 26300.
• Citation: 188 Wash. 467,62 P.2d 1094
• Parties: STATE v. EDWARDS et al.
• Court: Washington Supreme Court

62 P.2d 1094

188 Wash. 467

STATE v. EDWARDS et al.

No. 26300.

Supreme Court of Washington

December 11, 1936

Department 2.

Appeal from Superior Court, Skagit County; George A. Joiner, Judge.

Alfred Edwards, Alfonso Sampson, and Thomas McCloud were found not guilty of operating fish traps and taking salmon as forbidden by law, and the State appeals.

Judgment affirmed.

G. W Hamilton and L. C. Brodbeck, both of Olympia and Richard Welts, of Mt. Vernon, for the State.

J Charles Dennis, U.S. Atty., and Owen P. Hughes, Asst. U.S Atty., both of Seattle, for respondents.

TOLMAN Justice.

The respondents were charged by information in two counts with the violation of section 8, c. 1, page 6, Laws of 1935, by the maintaining and operating of two certain fish traps and the taking of salmon thereby. Each count charged that the respondents were Indians, that the trap was not authorized by any federal regulation, and that the acts complained of were done outside of any Indian reservation.

Pleas of not guilty were entered and the case duly proceeded to trial. After all of the evidence had been received, a motion for dismissal was made upon the ground, among others, that the evidence conclusively established that both fish traps were within an Indian reservation. This motion was granted, the trial court in its order reciting:

'* * * And it further appearing to the court from the evidence adduced that the said fishing traps, namely, the McMillan trap near Big Hope Island, Puget Sound, and the Point Pull-and-Be-Damned trap located adjacent to Point Pull-and-Be-Damned on Fidalgo Island, Puget Sound, were situated and located upon the tidelands and above the extreme low tide mark on the tidelands surrounding the southeastern end of Perry's Island called 'Shais-Quihl' reserved to the Indians under the treaty of Point Elliott of January 22, 1855; and it further appearing to the court that the two traps, namely the McMillan trap near Big Hope Island, Puget Sound, and the Point Pull-and-Be-Damned trap located adjacent to Point Pull-and-Be-Damned on Fidalgo Island, Puget Sound, were situated wholly within the Swinomish Indian Reservation, and the court being fully advised in the premises, now, therefore,

'It is ordered, considered and adjudged that the information filed in the above entitled case on July 17, 1935 be and the same is hereby dismissed on the grounds and for the reason that the above entitled court has no jurisdiction of the subject matter or persons of said defendants, to all of which the state excepts and the exceptions are allowed.'

The state has appealed.

The only question which we find necessary to decide is whether or not the fish traps in question are within the Indian reservation.

The Swinomish Indian Reservation was created by a treaty with the Indians concluded in the year 1855 and proclaimed by the President in 1859. 12 Stat. 928. The reservation consisted of and included the peninsula at the south end of Perry Island called 'Shais-Quihl.' The northern boundary of the reservation was later fixed by executive order as 'beginning at the low water mark' on one side and running to 'a point where the same intersects the low water mark' on the other side of the peninsula.

The question here is what was meant by the term 'low water mark,' not as between the State or its citizens or others, not as a matter of ordinary title, nor as concerning ordinary civil rights, but as between an all-powerful government on the one side and the untutored savage of 1855 to 1873, who was a ward of that government, on the other side, and even more than that because this is a criminal action brought to enforce a penal statute against a ward of the federal government who, apparently, was endeavoring to exercise only the rights granted to him by the treaty. What we shall say here therefore is strictly limited to the present situation and must not be construed as applying otherwise.

'Low water mark' may have had a technical meaning in 1873, when used in the executive order referred to, but it cannot be assumed that the Indians, whose rights were affected, knew of any such meaning or would understand the words as meaning anything other than that their rights extended just so far as the water ever receded on each side of their peninsula.

There are two low tides each day called the short run out and the long run out. The lower of these daily tides is called 'lower low tide.' The average of all low tides,...