State v. Smith
| Decision Date | 21 May 1981 |
| Docket Number | No. C79-06-32073,No. C79-06-32074,C79-06-32073,C79-06-32074 |
| Parties | STATE of Oregon, Respondent, v. Alvis William SMITH, Appellant. STATE of Oregon, Respondent, v. Alex Leon SMITH, Appellant. ; CA 17774,; CA 17838. |
| Court | Oregon Court of Appeals |
Mary Linda Pearson, Lapwai, Idaho, argued the cause and filed the briefs for appellants.
Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.
Before GILLETTE, P. J., ROBERTS, J., and CAMPBELL, J. Pro Tem. ROBERTS, Judge.
Defendants, Warm Springs Treaty Indians, were convicted by a jury of possession of food fish illegally taken in another state, ORS 509.105, a class A misdemeanor, and the felony of illegal transporting of food fish, ORS 509.011. Their indictments as to ORS 509.105 alleged as follows:
"The said defendant, on or about May 18, 1979, in the County of Multnomah, State of Oregon, did unlawfully and knowingly possess, import into this state and transport within this state, food fish unlawfully taken under the laws of the State of Washington, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon."
The indictments as to ORS 509.011 alleged the following:
"The said defendant, on or about May 18, 1979, in the county of Multnomah, State of Oregon, did unlawfully and knowingly make use of a vehicle, to-wit: a 1978 Chevrolet pickup, to transport food fish unlawfully taken during a closed season and unlawfully brought into this state of a total value of more than $200, and did possess said fish more than 12 hours prior to or more than 12 hours subsequent to a season established under ORS 506.129 by the State and Wildlife Commission, the particular waters where the fish were caught being unknown to the Grand Jury, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon."
Defendants' motion to dismiss for lack of jurisdiction and motion to suppress were denied.
On appeal, defendants assign as error the trial court's: (1) denial of their motions for dismissal and suppression, (2) failure to sever their trials in the absence of a motion to consolidate, and (3) entry of a judgment for conviction of a crime for an offense which defendants maintain could only be a violation.
On May 18, 1979, Alex L. Smith was driving a pickup truck belonging to Alvis Smith west on Highway I-80 (now I-84) from Cascade Locks toward Portland. With him in the truck were Alvis Smith and Alvis' girfriend, Audrey George. At the Bridal Veil entrance to the highway, an Oregon State Police pickup truck driven by Officer Richard McDonald entered the westward flow of traffic. McDonald was assigned to the Fish and Game Division. Defendants' pickup passed the police truck. McDonald, whose truck was not equipped with radar, decided to pursue defendants to check for speeding. He paced the defendants for two miles before stopping them. He approximated their speed at 62 miles per hour. McDonald approached Alex, the driver, and asked for his driver's license, explaining the reason for the stop. He then ran a check on the license. There were no outstanding violations. He told Alex he would not cite him for speeding, but gave him a warning.
Smelling fish, McDonald asked defendants what was in the back of the truck. Alvis replied that it was "baggage" or "cargo." 1 The officer then walked around to the back of the truck, where he observed water dripping out of a corner of the truck bed. He asked if he could take a look in the back of the truck. Alvis got out of the truck, went to the back, opened the rear canopy and pulled back the tarpaulin. He testified McDonald asked him to do these things and that McDonald then pulled back the whole tarp, uncovering four fish boxes full of salmon. McDonald could not remember whether Alvis acted at his request or not. Seeing marks on the fish which indicated they had been gill-netted, McDonald asked where the fish were from and whether defendants had any permits to possess them. Alvis told him the fish had been caught by Yakima Indians in the Klickitat River in Washington and that defendants had purchased them for a ceremonial dinner for deceased relatives. He and Alex both produced cards identifying themselves as members of the Confederated Tribes of the Warm Springs Reservation. (Defendants say they also showed Columbia River Indian hunting and fishing licenses.) McDonald then announced he was seizing the fish as gill-netted salmon and issued defendants a citation for illegal possession of salmon in a closed season. He radioed for help, loaded the fish into his vehicle and transported them to Portland where they were sold to a seafood wholesaler, as provided by ORS 506.690. 2
The state's contention is that the fish had been gill-netted and thus were illegally taken under the laws of Washington state. Defendants and their witnesses contend that the fish were caught by traditional Indian fishing methods dip net and bag net by Yakima Indians fishing at a "usual and accustomed" off-reservation fishing place, and that applicable Oregon administrative law allowed the sale of "subsistence" fish from one tribe to another. The state stipulated that if the fish in question were caught by Yakima Indians on the Klickitat River at a usual and accustomed fishing place, by traditional Indian fishing gear of dip net and hoop net, the fish would have been legal, and, further, that the possession of the fish by defendants would not be illegal if the fish had been caught legally.
Defendants' principal argument is that, because the fish seized by the Oregon State Police had been caught by a Yakima Indian in the Klickitat River at a "usual and accustomed" off-reservation fishing place, and since the Yakimas are members of the Columbia River System Treaty Indian Fishery, with subsistence fishing rights, the State of Oregon lacked subject matter and personal jurisdiction in the case. Defendants contend that according to federal case law, treaties and tribal resolutions jurisdiction could only lie in the U.S. District or tribal courts. This position not only misinterprets federal Indian fishing law, it also confuses matters of jurisdiction with matters of defense.
The treaties between the federal government and the Yakimas 3 and between the government and the "Indians in Middle Oregon," 4 Walla-Walla and Wasco Indians who make up the Confederated Tribes of Warm Springs Indians, secure to the tribes "the exclusive right of taking fish in all the streams running through or bordering their reservations, and the right to take fish at all usual and accustomed places in common with the citizens of the Territory." 5 A "usual and accustomed place" is one where members of a tribe have customarily fished from time to time at and before treaty times, regardless of distance from the tribes' habitat or concurrent use by other tribes. U. S. v. Washington, 384 F.Supp. 312, 332, (W.D.Wash.1974), affd. 520 F.2d 676 (9th Cir. 1975), cert. den. 423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1975), vacated on other grounds, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979).
The bulk of the cases cited by defendants 6 have to do with the manner in which a state may regulate Indian fishing rights when those rights have been secured by treaty. 7 That states may regulate Indian fishing under certain circumstances is clear. The Puyallup 8 cases established that while the right to take fish at usual and accustomed places cannot be qualified by the state, the manner of fishing, size of take and any commercial fishing may be regulated for conservation purposes. The standards used for regulation, however, must be "appropriate" and not discriminate against Indians. Puyallup I, 391 U.S. at 398, 88 S.Ct. at 1728. Appropriate standards are those for which the state has demonstrated that the means proposed are a reasonable and necessary conservation measure and must be applied to Indians in order to achieve the conservation goals. Puyallup II, 414 U.S. at 45, 94 S.Ct. at 331; Accord, U. S. v. Washington, supra, 520 F.2d at 683; Sohappy v. Smith, 302 F.Supp. 899 (D.Oregon 1969).
Other cases cited by defendants establish the right of the Yakimas to regulate treaty fishing rights of tribal members without state interference. U. S. v. Washington, supra, in addition to holding that the state could only regulate Indians' off-reservation treaty fishing to conserve fishery resources, held that tribes meeting certain qualifications and conditions could regulate the treaty fishing rights of their own members. These necessary conditions included procedures for enforcement, identification of members, and reporting. 384 F.Supp. at 340-41. Settler v. Lameer, 507 F.2d 231 (9th Cir. 1974), established the Yakimas' right to regulate tribal fishing at all usual and accustomed off-reservation sites. Lameer noted that the first Yakima regulations for tribal fishing were adopted in 1966 and were expanded in 1968 to provide off-reservation enforcement. These regulations established seasons and specified permissible methods, gear and fishing sites. 507 F.2d at 232.
At the time defendants were arrested, Yakima Tribal Council Resolution T-51-79, establishing the Klickitat River salmon fishing season, was in effect. The season was from noon February 1, to noon May 28, 1979, and August 23 to December 24, 1979. This resolution specified that the legal methods of taking edible fish from the Klickitat were by dip net, set bag net, and rod and reel; all other methods were declared unlawful. The taking of salmon by Yakimas using gill nets in the Klickitat would thus have been in violation of Yakima tribal laws and subject to enforcement by the Yakimas...
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