State v. Moses

• Court: Washington Supreme Court
• Writing for the Court: HALE; HAMILTON, C.J., HUNTER and ROSELLINI, JJ., and HILL; FINLEY; My concern herein is well-summarized by Belloni; STAFFORD; Finley
• Citation: State v. Moses, 483 P.2d 832, 79 Wn.2d 104 (Wash. 1971)
• Decision Date: 16 April 1971
• Docket Number: No. 40267
• Parties: STATE of Washington, Respondent, v. Robert MOSES, Cecil Moses, Larry V. Maurice and Sherman Dominick, Appellants.

Page 104

79 Wn.2d 104

483 P.2d 832

STATE of Washington, Respondent, v. Robert MOSES, Cecil Moses, Larry V. Maurice and Sherman Dominick, Appellants.

No. 40267.

Supreme Court of Washington, En Banc.

April 16, 1971.

Edmund J. Wood, Michael H. Rosen, Seattle, for appellants.

Christopher Bayley, Pros. Atty., Seattle, Slade Gorton, Atty. Gen., Joseph L. Coniff, William F. Lemke, Asst. Attys. Gen., Olympia, for respondent.

HALE, Justice.

Evanescent as the morning mists on the shimmering waters of Puget Sound is the law of Indian treaties. One moment it is there, soon to vanish in a swirl of conflicting, diverging and incomprehensible precedents. Decisions intended to declare the meaning and to describe the effect and operation of Indian treaties tend in time to generate a system of judicial vapor trails which obscure more often than elucidate the treaties under consideration. This is another Indian fishing case that leaves unanswered more questions than it resolves.

In a written memorandum opinion, the learned trial judge aptly summarizes the operative events:

This was no crime of stealth, for the Muckelshoot Indians had announced days in advance that members of their tribe would drop their gill nets in the upper reaches of the Green River, and thus force an arrest by which means the Muckelshoots could test their claimed right to fish with gill nets at 'their usual and accustomed fishing stations'.

Representatives of the newspapers, television stations and the State Game Department were present to record the event. The first sweep of the defendants' gill net failed to catch even a single fish, but another attempt, aided by rocks thrown by friends to scare the steelhead into the net, yielded eight steelhead.

The State Game protectors of course arrested the defendants, charging them with illegally fishing with gill nets, contrary to the provisions of RCW 77.16.060.

The defendants were all convicted in justice court, and this appeal followed. The State is here represented not only by the Prosecuting Attorney's office, but by the two Assistant Attorneys General assigned to the Game and Fisheries Department. The defendants are represented by attorneys from the American Civil Liberties Union, from the Legal Services Center, and from the United States Attorney's office. It is openly claimed by the prosecution that the United States Department of the Interior is here attempting to 'get its foot in the door' so that it may later regulate Indian fishing on the rivers in Washington. This claim is disregarded because it could not affect the result of the case.

The fact that the defendants fished on the day named with a gill net in the Green River and caught steelhead trout is shown on numerous photographs and motion pictures exhibited in court and is not controverted.

Although the facts of the case are uncomplicated, the issues of law sought to be raised are complex, tortuous and vague. March 1, 1966, defendants were seen by the state's officers gillnetting with meshed linen nets in the Green River at the Slaughterhouse Hole near Auburn upstream 1/2 mile from the bridge on highway No. 18. The defendant's nets nearly spanned the river there, but they caught no fish.

Failing to make a catch at the Slaughterhouse Hole, the defendants moved their nets upstream about 1 mile to where the New Neeley Bridge crosses the Green River. At that place, using a gill net 50 to 60 feet long which was equipped with plastic floats along its top edge and lead weights at the lower edge to keep it upright in the water and which did not span the river there, they made a sweep of about 400 yards. Aided by others who threw rocks into the river to scare the spawning fish into the gill net, the defendants in their third sweep netted eight steelhead trout which they killed with rocks and clubs.

Defendants claimed to be members of the Muckleshoot Tribe. At the places where they had cast their net, the Slaughterhouse Hole and the New Neely Bridge, the Green River runs through privately-owned and county-owned land, and no part of the river of the adjacent lands at either place is within the Muckleshoot Indian Reservation.

The steelhead trout is an anadromous game fish; in early March it swims upstream from salt water to spawn. The steelhead run in Washington's rivers is in part artificially created by fish propagation practices of the state.

Defendants were charged with illegally fishing for game fish in violation of RCW 77.16.060, which, so far as pertinent here, reads:

It shall be unlawful for any person to lay, set, use * * * any * * * nets * * * in any of the waters of this state with intent thereby to catch, take or kill any game fish. It shall be unlawful to lay, set or use a net capable of taking game fish in any waters of this state * * *.

Gill-net fishing for steelhead or other game fish, unless expressly allowed by regulation or written permit, is totally prohibited in this state throughout the year.

Convicted in justice court and sentenced to 6 months in the county jail with 5 months of the sentence suspended, defendants appealed to the superior court. Convicted again in superior court after trial without a jury, they were sentenced to '30 days, suspended, provided the defendant(s) (do) not fish illegally for a period of one year.' Contending that they are members of the Muckleshoot Indian Tribe and that the Treaty of Point Elliott of 1855 bars the state from prohibiting the tribe and its members from net fishing for game fish in the Green River, defendants bring this appeal. We affirm the judgment on the precise grounds upon which it rests and do not decide the many other issues raised by this record.

As we understand the issues, if, in the reasonable exercise of its sovereign powers, the state as a reasonable regulatory measure may constitutionally prohibit all persons, including treaty Indians, from any net fishing whatever in the Green River, many of the issues raised at trial and on this appeal need not be decided. Stated another way, if, in order to preserve its fisheries, the state can lawfully prevent all net fishing for game fish, then it becomes immaterial whether the Muckleshoot Tribe has any off-reservation fishing rights and whether the defendants were members of that tribe. Should it be the rule, however, that total prohibition of net fishing for game fish is unreasonable and in excess of the state's sovereign powers, then it becomes pertinent whether the Muckleshoots made a treaty with the United States; whether such a treaty existed at the time of the arrest of these defendants; whether the treaty gave defendants any rights in the Green River not shared by other citizens; whether these rights, if any, belonged to the tribe alone or could be exercised by individual members of it; whether treaty Indians may cross and occupy privately-owned and publicly-owned lands for the purpose of fishing; and, assuming arguendo the existence of any off-reservation fishing rights in the tribe or these defendants whether such rights included the right to use a long linen gill net with plastic floats and lead weights.

Concluding that, because the state had not exceeded reasonable regulatory powers in totally prohibiting net fishing for game fish in the Green River, the court ruled that a total prohibition of net fishing for steelhead would not violate whatever off-reservation fishing rights defendants might have. On this basis, the trial court held that, even though the Muckleshoot Tribe did have off-reservation fishing rights and defendants were members of that tribe, their tribal status did not relieve them from what the court held to be a reasonable and unexcessive regulation. Accordingly, since the state had shown total prohibition of net fishing to be a reasonable regulatory measure in preserving a fishery, the trial court did not specify the kind or nature of the off-reservation fishing rights deriving from the treaty nor did it pass upon on construe the treaty provision that the right of taking fish at usual and accustomed grounds is secured to the Indians 'in common with all citizens of the Territory.' Surprisingly little judicial attention, we note, has been given to this rather standard treaty language.

Defendants invoked the Treaty of 1855 concluded with the Indians on the shores of Puget Sound by the United States Government. January 22nd of that year, Isaac I. Stevens, as Governor and Superintendent of Indian Affairs for the Territory of Washington, and his official party acting for the United States met with a number of chiefs, headmen and delegates of certain named tribes and bands of Indians. There, at a place designated in the treaty as Mucklteoh or Point Elliott, they concluded what is described in the treaty as 'Articles of Agreement and Convention.' 12 Stat. 927 (1863). Article 1 of the Treaty of Point Elliott, without acknowledging ownership or possessory rights in them, declared that the Indian signatories ceded, relinquished and conveyed to the United States all of their right, title and interest in the lands they had traditionally occupied. Article 2, reserving for the use and occupancy of these Indians designated areas or reservations contained a provision that no 'white man (shall) be permitted to reside upon the same without permission of the said tribes or bands.'

Article 5 is the basis upon which defendants here set up their affirmative defense to the charge of illegal net fishing. It says:

Article V. 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.

Defendants did not take the witness stand, but, along with other evidence,...