State v. Stritmatter

• Decision Date: 20 September 1984
• Docket Number: No. 49447-9,49447-9
• Citation: 102 Wn.2d 516,688 P.2d 499
• Parties: STATE of Washington, Respondent, v. Roy STRITMATTER, Violet Starr, Appellants.
• Court: Washington Supreme Court

Page 516

102 Wn.2d 516

688 P.2d 499

STATE of Washington, Respondent, v. Roy STRITMATTER, Violet Starr, Appellants.

No. 49447-9.

Supreme Court of Washington En Banc.

Sept. 20, 1984.

Ziontz, Pirtle, Morisset, Ernstoff & Chestnut, Samuel J. Stiltner, Seattle, Stritmatter, Kessler & McCauley, Keith

Kessler, Hoquiam, for appellants.

Michael G. Spencer, Grays Harbor County Prosecutor, Montesano, for respondent.

PEARSON, Justice.

Appellants Roy Stritmatter, a fish dealer, and Violet Starr, a member of the Chehalis Indian Tribe, are charged with 10 counts of trafficking in steelhead taken in violation of a closure of the Chehalis River by the Washington State Department of Game. RCW 77.16.040; WAC 232-32-130. Additionally, Starr is charged with buying and selling steelhead without a permit (RCW 77.21.010; WAC 232-12-212), and Stritmatter is charged with the failure to keep a record of steelhead purchased and received from Starr. RCW 77.21.010; WAC 232-12-213.

Appellants were convicted on all counts in Grays Harbor County Superior Court. With the exception of Stritmatter's conviction for failure to keep proper records, we reverse.

In the 1970's, numerous state and federal lawsuits were initiated to determine the fishing rights of those Western Washington Indian tribes which had entered into treaties with the United States. Although several decisions by the United States Supreme Court have resolved numerous issues, ¹ the United States District Court for Western Washington has continuing jurisdiction over this fishing rights controversy.

In Washington v. Washington State Comm'l Passenger Fishing Vessel Ass'n, 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823, modified on other grounds sub nom. Washington v. United States, 444 U.S. 816, 100 S.Ct. 34, 62 L.Ed.2d 24 (1979) (Fishing Vessel ), the Supreme Court held that treaty Indians have a right to take a "fairly apportioned share" of each run of fish passing through tribal fishing areas, both on and off the reservation. Fishing Vessel, at 682, 99 S.Ct. at 3072. This fairly apportioned share is approximately 50 percent of the harvestable fish. Fishing Vessel, at 685, 99 S.Ct. at 3074.

The Washington State Department of Game manages the fishery resources of this state. Pursuant to state statute, and consistent with the federal and state case law, the Department sets limits on the number of steelhead which may be taken by Indian "treaty fishermen" and by "nontreaty fishermen". See Puget Sound Gillnetters Ass'n v. Moos, 92 Wash.2d 939, 603 P.2d 819 (1979). The primary goal of the Department's management of steelhead runs is to assure that a sufficient number of fish return upstream to spawn so the optimum run size will be perpetuated in future years.

Each year the Department determines the total number of steelhead which can be caught by all fishermen, Indian and non-Indian, and yet allow a sufficient number of fish to return upstream to spawn. By various means, the Department determines the number of fish caught by Indian and non-Indian fishermen during the open season. Once it is determined that a group has caught its 50 percent share, the river is then closed to further fishing by that group.

In these efforts to manage steelhead runs, the Department of Game issues two types of closure orders. Through "allocation closures", the Department stops the taking of fish by either treaty fishermen or nontreaty fishermen to prohibit one group or the other from taking more than their 50 percent share. A "conservation closure" stops all fishing by both groups to allow the necessary number of fish to return upstream to spawn. The Supreme Court has held that conservation closures operate against Indians, treaty or nontreaty, as well as non-Indians. Antoine v. Washington, 420 U.S. 194, 207, 95 S.Ct. 944, 951, 43 L.Ed.2d 129 (1975).

On January 13, 1981, the Department of Game issued an allocation closure order which provides in relevant part:

WAC 232-32-130 CLOSURE OF NISQUALLY AND CHEHALIS RIVER SYSTEMS ... TO THE TAKING OF STEELHEAD TROUT WITH GILL NETS AND SEINES BY TREATY INDIANS.

* * *

Data gathered by the Department of Game ... indicates that the treaty share of harvestable steelhead has been reached or will have been reached on the effective date of this order. Therefore, a closure of Nisqually and Chehalis river systems ... is necessary to assure non-treaty sports fishermen their right to take their share of those remaining steelhead.

[The following] rule is therefore adopted as an emergency[:]

* * *

It shall be unlawful for all persons to take, fish for, or possess steelhead trout with gill nets and seine gear in the ... Chehalis River system ... effective 6:00 p.m., January 14, 1981.

(Italics ours.) Director's Order 121, Dep't of Game (1981). ²

The "Chehalis River system" referred to in this order runs through the Chehalis Indian Reservation.

Before trial the parties in this case stipulated that all of the steelhead in which the defendants allegedly trafficked were caught on the Chehalis Reservation after the closure order took effect. Evidence at trial indicated the fish were taken by tribal fishermen. The parties also stipulated to the admissibility of expert testimony regarding the Chehalis Tribe's culture, including a description of the tribe's historical commercial fishing practices.

The Chehalis Tribe never entered into a treaty with the United States, as did the other Western Washington tribes involved in the 1970's fishing rights cases. The Chehalis Reservation was created by an 1886 executive order signed by President Grover Cleveland. 1 Kappler, Indian Affairs, Laws and Treaties 901-04 (2d ed. 1904). Believing itself exempt from the apportionment required by the holding in Fishing Vessel and therefore from the Department's closure order, the tribe continued to take fish from the Chehalis River after the effective date of that order. ³

I

We first address the appellants' convictions on 10 counts of trafficking in steelhead taken from the Chehalis River in violation of the closure order. Appellants argue that the closure order did not apply to the Chehalis Tribe; therefore, the fish were neither caught nor sold illegally. The State's position is that nontreaty tribes, including the Chehalis, have the same fishing rights as treaty Indians were determined to have in the 1970's litigation, and therefore, the closure order applied to the Chehalis Tribe.

Although nontreaty Indian fishing rights have not been definitively established by statute or court decision, several federal court decisions guide us in clarifying these rights. The executive order establishing the Chehalis Reservation does not specifically reserve the tribe's right to fish on the reservation. The order "set apart" a certain parcel of land "for the use and occupation of the Chehalis Indians." Kappler, at 904. This language "for the use and occupation ...", has been interpreted in other cases as reserving to the tribe exclusive hunting and fishing rights within the reservation. See Alaska Pacific Fisheries v. United States, 248 U.S. 78, 39 S.Ct. 40, 63 L.Ed. 138 (1918); Menominee Tribe v. United States, 391 U.S. 404, 88 S.Ct. 1705, 20 L.Ed.2d 697 (1968).

The scope of these exclusive on-reservation fishing rights depends upon the exercise of those rights prior to the establishment of the reservation. United States v. Michigan 471 F.Supp. 192, 255-57 (W.D.Mich.1979), remanded on other grounds, 623 F.2d 448 (6th Cir.1980), adhered to, 520 F.Supp. 207 (W.D.Mich.),on appeal, 653 F.2d 277 (6th Cir.), cert. denied, 454 U.S. 1124, 102 S.Ct. 971, 71 L.Ed.2d 110 (1981). As noted above, there was evidence stipulated to at trial that the Chehalis Indians historically took fish from this river. Their fishing was not merely for subsistence, but also for commercial purposes.

A well-accepted tenet for the construction of Indian treaties is that a treaty is "not a grant of rights to the Indians, but a grant of rights from them--a reservation of those not granted." United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905). When the other Western Washington tribes entered into treaties with the United States, the tribes reserved an exclusive right to fish on the reservation and a right to fish "in common with all citizens of the Territory" at historical fishing areas off the reservation. Treaty of Medicine Creek, Dec. 26, 1854, 10 Stat. 1132, 1133. The Supreme Court held that this language with respect to off-reservation fishing "effects a reservation of a previously exclusive right [but] also recognizes that the right is to be shared in common with the non-Indian 'citizens of the Territory.' " Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 176-77 n. 16, 97 S.Ct. 2616, 2623-24 n. 16, 53 L.Ed.2d 667 (1977) (Puyallup III). Prior to the treaty in Puyallup III, those tribes had exclusive fishing rights in their historical fishing areas. The treaty was a grant by the Indians, allowing other citizens to share in previously exclusive fishing areas.

The executive order forming the Chehalis Reservation does not have the "in common" language of the treaty found in Puyallup III. Therefore, the tribe has not granted away any of its exclusive fishing rights. The Chehalis Tribe's fishing rights are similar to those found in United States v. Michigan, supra. The tribe there had entered into a treaty which impliedly reserved historical fishing rights, but which did not grant any right to non-Indians to share those rights. The federal court distinguished the treaty found in Puyallup III on the basis of this difference in treaty language and held that the State of Michigan has extremely limited authority to regulate the tribe's right to fish in the Great Lakes. United States v. Michigan, 471 F.Supp. at 270. Any regulation must be a necessary conservation measure and must also be the least restrictive means available for preserving area fisheries from irreparable harm. ...