State v. Tulee

• Citation: 109 P.2d 280,7 Wn.2d 124
• Decision Date: 13 January 1941
• Docket Number: 28079.
• Parties: STATE v. TULEE.
• Court: United States State Supreme Court of Washington

109 P.2d 280

7 Wn.2d 124

STATE v. TULEE.

No. 28079.

Supreme Court of Washington, En Banc.

January 13, 1941

Sampson Tulee was convicted of catching salmon and food fish with a dip bag net and with selling commercially fish caught without obtaining a license to fish, and he appeals.

Affirmed.

SIMPSON MILLARD, and BLAKE, JJ., dissenting.

Appeal from Superior Court, Klickitat County; J. E. Stone, judge.

Lyle Keith, U.S. Atty., of Spokane, and Kenneth R L. Simmons, Dist. Counsel, Department of Interior, of Billings, Mont., for appellant.

Smith Troy, Atty. Gen., T. H. Little, of Olympia, and Edgar H Canfield, of Goldendale, for respondent.

BEALS Justice.

Defendant herein, Sampson Tulee, a member of the Yakima Tribe of Indians, was charged by information filed in the superior court for Klickitat county, Washington, with the offense of having, May 6, 1939, caught salmon and food fish with a dip bag net, and with selling commercially the fish which he had caught, all without first having obtained a license to fish as required by Rem.Rev.Stat. (Sup.) § 5703. Tulee claiming that under the Treaty of June 9, 1855, 12 U.S.Stat. 951, he, as a member of the Yakima Tribe of Indians, had the right to catch fish as he did, the United States, on behalf of its ward, Sampson Tulee, the defendant, petitioned the United States District Court for the Eastern District of Washington for a writ of habeas corpus. After due proceedings had, the United States District Court held that the right secured to the Yakima Tribe of Indians by the treaty referred to was subject to the paramount and superior right of the state, in the exercise of its sovereign police powers, to reasonably regulate the taking of salmon from the waters within its jurisdiction, and denied the petition for the writ. On appeal to the United States Circuit Court, United States in behalf of Tulee v. House, 9 Cir., 110 F.2d 797, that court held that while it had jurisdiction of the case, it was not a proper cause for the exercise of such jurisdiction, and, following the rule laid down in the case of United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 46 S.Ct. 1, 70 L.Ed. 138, held that the cause should be tried in the state courts, subject to review of any judgment of this court Before the Supreme Court of the United States.

The cause then proceeded Before the superior court for Klickitat county on an amended information charging defendant with having caught, at one of the usual and accustomed ancient fishing places of the Yakima Tribe of Indians, as defined in the treaty above referred to, certain food fish and salmon, and selling the same commercially without having obtained a license for the taking thereof, as required by the state law. On arraignment defendant entered a plea of not guilty, and demurred to the information on the grounds that the facts charged do not constitute a crime, and that the information contained matter which, if true, constitutes a legal bar to the action. The demurrer was overruled by the trial court, and the action proceeded to trial Before the court and jury. Defendant objected to the introduction of any testimony, and moved for a directed verdict of not guilty, his objection and motion having been overruled. The jury returned a verdict of guilty, whereupon defendant moved in arrest of judgment and for a new trial. These motions having been denied, judgment was entered upon the verdict, and sentence imposed. Defendant was admitted to bail, and appeals to this court from the judgment of guilty and sentence imposed thereon.

Error is assigned upon the overruling of appellant's demurrer to the amended information; upon the overruling of his objections to the introduction of any evidence; upon the denial of his motion for a directed verdict; and upon the denial of his motions in arrest of judgment or for a new trial. Appellant also assigns error upon certain instructions given by the court, and upon the refusal of the trial court to give two instructions which appellant requested.

The only question raised upon this appeal is whether appellant, as a member of the Yakima Tribe of Indians, was, under the treaty between the United States and the Yakima Tribe, entitled to catch fish in the Columbia river, without the territorial limits of the Yakima Indian Reservation, without regard to the statutes of the state of Washington covering the taking of food fish from the lakes and rivers within this state.

During the latter part of May and the first part of June, 1855, the United States, represented by Governor Isaac I. Stevens, who was Governor of the then territory of Washington, and also the agent of the United States for dealing with the Indian tribes inhabiting the territory, held a council with the Yakima Indians and other tribes, at Walla Walla Valley, Washington Territory. As the result of this council, the Treaty of June 9, 1855, between the United States and the Yakima Tribe, was signed. By this treaty the territorial limits of the reservation assigned to the Yakimas were fixed. The portion of the treaty pertinent to the facts in the case at bar is the second paragraph of article III, which reads as follows: 'The exclusive right of taking fish in all the streams, where running through or bordering said reservation, is further secured to said confederated tribes and bands of Indians, as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing them * * *.'

We are not here concerned with the right of the Indians to take fish from the streams running through or bordering upon the reservation. We are concerned only with the latter portion of the paragraph of the treaty quoted, which secured to the Indians the right to fish 'at all usual and accustomed places, in common with citizens of the Territory.'

All treaties with Indian tribes are construed by the courts in favor of the Indians, in an endeavor to exercise toward them the highest degree of good faith, because of the dominant position of the United States government. United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228; Choctaw Nation v. United States, 119 U.S. 1, 7 S.Ct. 75, 30 L.Ed. 306; Jones v. Meehan, 175 U.S. 1, 20 S.Ct. 1, 44 L.Ed. 49; United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089.

At the time of the making of the treaty, the then territory of Washington was largely wild land, sparsely inhabited. The Yakimas were a powerful tribe, and the making of the treaty with them was an important step in the process of establishing orderly government and providing for the settlement of the territory. Fishing was an important part of the life of the Indians, and the right secured to the tribe to catch fish not only on the reservation but at other accustomed fishing places off the reservation, was then to them a valuable right.

In connection with this treaty, appellant earnestly invites our attention to a certified copy of the minutes of the proceedings of the council above referred to, held between representatives of the United States and various bands of Indians, including the Yakima Tribe, which resulted in the Treaty of June 9, 1855. Governor Isaac I. Stevens, the senior representative of the United States present, as shown by the minutes of the council, repeatedly assured the Indians that they would not be wronged, that their treaty rights would be protected, and that the provisions of the treaty would be faithfully carried out. The minutes show that on June 5th, Governor Stevens assured the Indians that they would be allowed to go to the usual fishing places and fish in common with the whites.

In the early case of Johnson v. McIntosh, 8 Wheat. 543, 586, 21 U.S. 543, 5 L.Ed. 681, the court recognized the rights of the Indians, saying: 'All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy.'

This court, in the case of Pioneer Packing Co. v. Winslow, 159 Wash. 655, 294 P. 557, held that the state had no jurisdiction over the Indians, in so far as their right to fish in streams flowing through or bordering upon a reservation was secured to them by a treaty similar to that above referred to.

In interpreting Indian treaties, the rule has been followed that rights not expressly granted by the Indians are reserved to them. Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340.

On several different occasions this court has considered the question here presented. While admitting the force of our previous decisions, appellant asks that this question be re-examined, particularly in the light of the record of the council between Governor Stevens and the Indians above referred to, the existence of which record was not known at the time the prior cases were decided.

In the case of State v. Towessnute, 89 Wash. 478, 154 P 805, it appeared that the defendant was charged with violation of the state game laws governing the taking of food fish. The defendant, a member of the Yakima Tribe, had caught salmon at a point on the Yakima river several miles outside of the Yakima Reservation. The defendant had not procured a fishing license, and had snagged the salmon with a gaff hook, thereby admittedly violating the state game law and rendering himself subject to prosecution, unless the clause of the treaty hereinabove quoted gave him the right to fish at the point on the Yakima river where he had taken the salmon, free from the limitations provided by the statutes of this state. The trial court sustained the defendant's demurrer to the information and dismissed the proceeding. On appeal this court reversed the trial court, holding that the information was good, and that the demurrer thereto was...