State v. McCoy

Decision Date19 December 1963
Docket NumberNo. 36224,36224
Citation63 Wn.2d 421,387 P.2d 942
CourtWashington Supreme Court
PartiesThe STATE of Washington, Appellant, v. Joe McCOY, Respondent.

Walter J. Deierlein, Jr., and Paul N. Luvera, Jr., Mount Vernon, for appellant.

Harwood Bannister, Mount Vernon, for respondent.

John J. O'Connell, Atty. Gen., Joseph L. Coniff, Asst. Atty. Gen., Seattle, for amicus curiae.

ROSELLINI, Judge.

This case involves the question of whether the state can enforce reasonably necessary regulations for the conservation of chinook salmon fisheries against an Indian whose tribe was a party to the Treaty of Point Elliott, 12 Stat. 927 (January 22, 1855).

Defendant, an American Indian of Swinomish descent, was charged with fishing in closed waters. The trial court acquitted him, holding that the Treaty of Point Elliott granted him immunity from state regulatory powers. The state appeals.

In the early morning hours of July 28, 1960, defendant was fishing from his boat in what is called the 'jetty drift' located near the mouth of the north fork of the Skagit River. He was operating an 18-foot, 25-hp. outboard-motor boat, and was using a 600-foot modern nylon gill net. One end of the net was attached to his boat; the other end extended horizontally 600 feet. The top of the net was equipped with floats and the bottom with a lead line. The net, thus, was held perpendicular in the water and the mesh was deed enough to drag the bottom of the river. The defendant would commence in the upper reaches, and drift with the tide to the end of the jetty. This procedure would be repeated. The effect was to sweep the jetty clean of fish. The defendant's catch of salmon was for sale to commercial buyers.

The jetty draft is a commercial fishery which has been enjoyed in common by the Indians and non-Indians for a period of many years. About 1959, the Swinomish Indians asserted that they could fish unregulated at the jetty drift.

The regulation in effect at the time of the defendant's arrest was not a permanent prohibition of fishing. It was 10-day closure designed to protect the peak of the salmon runs passing through the Skagit River to the spawning grounds.

Salmon migrate through many fisheries. Time closures, therefore, are staggered to protect the fish as they make their way through each fishery stituated on the path of migration. This 10-day closure on the Skagit River was closed to all fishing. Defendant asserts his immunity to the closure regulation because of Art. 5 of the Treaty of Point Elliott:

'The right of taking fish at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing, together with the privilege of hunting and gathering roots and berries on open and unclaimed lands. Provided, however, that they shall not take shell-fish from any beds staked or cultivated by citizens.' (Treaty with the Dwamish, Suquamish, etc., 1855, 12 Stat. 927).

The court found that the respondent was not fishing within the boundaries of the reservation, but was fishing at the usual and accustomed fishing grounds.

The 24 assignments of error raise two issues (1) whether the state can show that regulation is reasonably necessary to conserve a fishery resource, and (2) whether it has been preempted by the Treaty of Point Elliott from any state action in regard to Indian fishing rights. 1

It is contended by the respondent that the Treaty of Point Elliott reserves to Indians the unrestricted right to fish. Therefore the reasonableness of any regulation is an irrelevancy. The law is otherwise when applied to treaty Indians fishing off of the reservation at the usual and accustomed grounds.

In Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115, (1942), the court ruled that the state might regulate the time and manner of off-reservation fishing by Indians where necessary for conservation.

'The appellant [Tulee], on the other hand, claims that the treaty gives him an unrestricted right to fish in the 'usual and accustomed places', free from state regulation of any kind. We think the state's construction of the treaty is too narrow and the appellant's too broad; that while the treaty leaves the state with power to impose on Indians, equally with others, such restructions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, it forecloses the state from charging the Indians a fee of the kind in question here.'

The United States Supreme Court reaffirmed this ruling is Organized Village of Kake v. Egan, 369 U.S. 60, 75, 82 S.Ct. 562, 571, 7 L.Ed.2d 573:

'* * * Even where reserved by federal treaties off-reservation hunting and fishing rights have been held subject to state regulation. Ward v. Race Horse, 163 U.S. 504, 16 S.Ct. 1076, 41 L.Ed. 244; Tulee v. Washington, 315 U.S. 681, 62 S.Ct. 862, 86 L.Ed. 1115, in contrast to holdings by state and federal courts that Washington could not apply the laws enforced in Tulee to fishing within a reservation, [citing authorities].

'True, in Tulee the right conferred was to fish in common with others, while appellants here claim exclusive rights. * * *'

In Makah Indian Tribe v. Schoettler, 192 F.2d 224 (C.A. 9th, 1951), the court held that the state had not proved the necessity of a regulation limiting gear in the Hoko River to hook and line. In the course of the opinion, the court observed that the resource might be equally well conserved by permitting a fishery with periodic closures.

In the case of Maison v. Confederated Tribes of Umatilla Indian Reservation, 314 F.2d 169 (C.A. 9th, 1963), the court said 'Thus, in both the Tulee and Makah cases it was held that the Indians' right to fish is qualified by the state's right to regulate such fishing when necessary for conservation. But, to establish necessity the state must prove two facts: first, that there is a need to limit the taking of fish, second, that the particular regulation sought to be imposed is 'indispensable' to the accomplishment of the needed limitation.'

Of interest is the Indian Claims Commission decision which is not published, but is on microfilm at the University of Washington Library, and has been transcribed and made available to this court. That is the case of Makah Indian Tribe v. United States, 7 Ind.Cl.Comm. 477 (1959) affirmed 151 Ct.Cl., docket No. 559, unpublished, cert. den. 365 U.S. 879, 81 S.Ct. 1028, 6 L.Ed.2d 191 (1961). There compensation was sought for the alleged impairment of the treaty-fishing right by regulation. The treaty provision was similar to that in the instant case. The commission ruled, p. 507:

'By entering into international agreements with Canada to conserve, protect and restore the depleted Pacific halibut ocean fishing, the United States did not deprive, abrogate or deny to the Makah Tribe of Indians any right which they may have reserved under Article IV of the 1855 Makah Treaty to fish in common with all citizens of the United States at usual and accustomed grounds and stations because:

'(1) Such fishing rights as guaranteed under Art. IV of the 1855 Makah Treaty are not so absolute, unlimited, and exclusive in that they cannot be accommodated and adjusted to meet changing circumstances where the Government must impose reasonable regulations designed to conserve and protect our natural resources for the benefit of all. Tulee v. State of Washington, 315 U.S. 1081 [62 S.Ct. 862, 86 L.Ed. 1115] (1942), Makah Indian Tribe v. Schoettler, 192 F.2d 244 (1951); and

'(2) The defendant has shown by overwhelming evidence (for the most part undisputed) that the seasonal restrictions, imposed upon the Pacific coast halibut fishery by regulations promulgated and adopted by the International Fisheries Commission, pursuant to the Convention between Canada and the United States, are fair reasonable, and absolutely necessary to conserve, protect, and rehabilitate the halibut species. * * * '(3) The reserving of Makah fishing rights at usual and accustomed places under the 1855 Treaty was founded upon the need of the petitioner tribe to maintain its then subsistence economy which was based primarily upon the immediate products of the sea, and in no sense was this treaty provision a guarantee of future commercial fishing rights.

'(4) Petitioner has failed to prove that in complying with the regulations of the halibut Commission, or by their enforcement, the individual members of petitioner tribe suffered a deprivation to the extent that they are unable to sustain their immediate wants or that of their families consistent with a subsistence economy.'

To ascertain whether regulation is reasonably necessary for conservation of Pacific salmon, one must understand the life cycle of these fish.

Pacific salmon are anadromous fish; that is, they are hatched in fresh water, descend to salt water, attain most of their growth there, and then return to the stream of their origin to spawn and perpetuate their kind. After spawning, they die. They have a well-developed homing instinct that enables them to return to spawn in the stream of their origin. Spawning occurs in the fall and winter in well-percolated gravel beds, where the fish bury their eggs to protect them from predators and the elements. The eggs hatch in the gravel and the fish live there for a time, subsisting on the yoke material from the egg. After emerging from the gravel, the young fish begin to swim actively. Depending on the species, some salmon spend a year or more in fresh water before migrating to sea, while others leave for ocean environment within a few weeks or months after emerging from the gravel of the nest. Three to five years later, the chinook salmon return from the sea to the river of their birth to spawn.

After the various species of salmon near maturity and are in prime condition, they leave...

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  • State v. Buchanan
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