United States v. McGowan, 6858.

• Citation: 62 F.2d 955
• Decision Date: 16 January 1933
• Docket Number: No. 6858.,6858.
• Parties: UNITED STATES, as Trustee, etc., and ex rel. CHARLEY et al. v. McGOWAN et al. SAME v. BAKERS BAY FISH CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

62 F.2d 955 (1933)

UNITED STATES, as Trustee, etc., and ex rel. CHARLEY et al. v. McGOWAN et al.

SAME v. BAKERS BAY FISH CO. et al.

No. 6858.

Circuit Court of Appeals, Ninth Circuit.

January 16, 1933.

Anthony Savage, U. S. Atty., and Tom De Wolfe and Hamlet P. Dodd, Asst. U. S. Attys., all of Seattle, Wash., and W. H. Smiley, of Hoquiam, Wash., for the United States.

Kelly & MacMahan, of Tacoma, Wash., for appellee Bakers Bay Fish Co.

John H. Dunbar, Atty. Gen., and E. W. Anderson, Asst. Atty. Gen., for appellee State of Washington.

Before WILBUR and SAWTELLE, Circuit Judges, and CAVANAH, District Judge.

WILBUR, Circuit Judge.

Two actions were brought by the United States, as trustee and guardian of the Quinaielt and Quillehute Indians and particularly the three Indians named in the bill, George Charley, Mitchell Charley, and Roland Charley, to enforce the rights of these two tribes of Indians in certain fishing grounds at the mouth of the Columbia river.

The decision of the trial court was adverse to the contention of the government. It is conceded on appeal that as to the Quillehute Indians the decree is right. The rights which the government seeks to enforce are those granted or reserved by article 3 of the treaty entered into with the Quinaielt and other Indian tribes on the 1st day of July, 1855, and the 25th day of January, 1856, ratified by the United States Senate on March 8, 1859, and accepted and proclaimed by the President of the United States on April 11, 1859 (12 Stat. 971), which is as follows:

"Article III. The right of taking fish at all usual and accustomed grounds and stations is secured to said Indians in common with all citizens of the Territory, and of erecting temporary houses for the purpose of curing the same; together with the privilege of hunting, gathering roots and berries, and pasturing their horses on all open and unclaimed lands. Provided, however, That they shall not take shell-fish from any beds staked or cultivated by citizens. * * *"

Similar provisions contained in other Indian treaties made about the same time were considered by the Supreme Court in U. S. v. Winans, 198 U. S. 371, 25 S. Ct. 662, 49 L. Ed. 1089, and Seufert Bros., etc., v. U. S., 249 U. S. 194, 39 S. Ct. 203, 63 L. Ed. 555. A discussion of the particular treaties involved in this action, and of the facts surrounding their execution, is contained in our decision in U. S. v. Halbert, 38 F.(2d) 795; Id., 283 U. S. 753, 51 S. Ct. 615, 75 L. Ed. 1389.

About one hundred fifty-eight Quinaielt Indians participated in the making of the treaty. The trial court arrived at the conclusion that the evidence was insufficient to show that the mouth of the Columbia river was used by the Quinaielt Indians as a usual and accustomed ground or station for fishing.

The appellant contends that the undisputed evidence shows that long before the treaty was entered into, the Quinaielt Indians had been using the mouth of the Columbia river as an accustomed place of fishing, and that the evidence of the appellee as to nonuse all related to dates later than the treaty and later than those testified to by the Indian witnesses, and that therefore, there was no conflict between the evidence of the government and the evidence adduced on the subject of use by the appellees. Before further discussion of the evidence in that regard, the general situation disclosed by the evidence with regard to conditions at the mouth of the Columbia river at the time of the treaty should be stated, and in this connection it should be said that the appellees do not rest their case upon the broad ground taken by the trial judge to the effect that the Quinaielt Indians did not, at and prior to the time of the treaty, use any part of the mouth of the Columbia river for fishing purposes, but upon the narrower ground that the evidence entirely failed to show that the particular location within the estuary, as described in the complaint, was so used.

A large number of maps showing the conditions at the mouth of the Columbia river and the location in question, from time to time, were offered on behalf of both parties. The earliest map is dated 1792. There are maps dated 1839, 1851, 1854, and many later maps. It appears from these maps that the underwater conditions at the mouth of the Columbia and between Cape Disappointment on the north, and Point Adams on the south, have been subject to constant change, that this change was accelerated by the building of the south jetty extending in a westerly direction from Point Adams on the south side of the Columbia and the north jetty extending in a southwesterly direction from Cape Disappointment on the north side of the Columbia river. The south jetty was begun in 1885 and completed in 1912. The north jetty was constructed in 1916. At the time of the treaty there was open water from Point Adams to Cape Disappointment, the only land appearing above the surface of the water was Sand Island, at that time about 3 ¼ miles southeasterly from Cape Disappointment and not on the line between that Cape and Point Adams. What is called the north channel extended across the area described in the complaint, the water having a depth of from 3 ¼ to 6 fathoms where the land which is called Peacock Spit is now located. This spit of land now extends southeasterly from Cape Disappointment. Sand Island shown on the map of 1854 has gradually moved by the process of accretion and attrition, until it is now less than half a mile directly east of Sand Island, and has grown in size from less than one-half mile to more than two miles in length. Peacock Spit is bare at high tide. It is a relatively recent growth, although shoal water extending southwesterly (not southeasterly as at present) from Cape Disappointment had been long known as Peacock Spit by reason of the wreck of a ship of that name in that location. Such a shoal is first shown on the Coast Survey Map of 1851. As early as 1885 there was a small island, dry at low tide, immediately south of the present location of Peacock...