Whitefoot v. United States

• Citation: 293 F.2d 658
• Decision Date: 04 October 1961
• Docket Number: No. 497-57.,497-57.
• Parties: Ambrose WHITEFOOT and Minnie Whitefoot v. UNITED STATES.
• Court: Court of Federal Claims

293 F.2d 658 (1961)

Ambrose WHITEFOOT and Minnie Whitefoot v. UNITED STATES.

No. 497-57.

United States Court of Claims.

July 19, 1961.

Rehearing Denied October 4, 1961.

Frederick Paul, Seattle, Wash., C. Robert Mathis, Albert A. Grorud, Raymond C. Cushwa, Washington, D. C., and William L. Paul, Sr., Seattle, Wash., on the briefs, for plaintiffs.

Thos. L. McKevitt with whom was Perry W. Morton, Asst. Atty. Gen., for defendant.

REED, Justice (Retired), sitting by designation.

This is a suit to recover compensation for the taking by destruction through inundation of certain fishing rights and other rights claimed as the individual property of plaintiffs in the Columbia River near Celilo Falls in the States of Washington and Oregon by the construction by the United States of The Dalles Dam, completed in 1956.

The plaintiffs are Indians enrolled in the Yakima Nation, a confederation created and granted a reservation by the Treaty between the United States and the Yakima Nation, June 9, 1855, 12 Stat. 951. By the treaty the various tribes composing the Nation gave up their claim by Indian title to a large expanse of territory over which they roamed in return for the United States' recognition of a portion of the area claimed under Indian title as a reservation for the Yakima Nation and its agreement to expend $200,000 for the Yakima's benefit, to furnish them schools, shops and a hospital, and to compensate individual Indians for substantial improvements, "such as fields enclosed and cultivated, and houses erected," made by such individuals upon tribal property. By this treaty the Yakima Nation secured rights recognized by the United States which could not be infringed without compensation.¹

Then, as now, fishing in the Columbia for anadromous fish was important to the Indians and provided them their food, fresh and dried, and a medium for acquiring other commodities. In the treaty, therefore, this provision was made in article III:

"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; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land." 12 Stat. 953.

Under this authority both Yakima Reservation Indians and Indians who live off the Reservation and around Celilo Falls have continued to fish at the Falls. Cf., United States v. Winans, 198 U.S. 371, 25 S.Ct. 662, 49 L.Ed. 1089. Many of them, including plaintiff Minnie Whitefoot, claimed the exclusive right to fish at certain points or rocks away from their reservation called fishing stations. As the Commissioner found,

"* * * the right of particular families in the tribe to use, occupy and fish from certain of the tribally owned fishing stations was a right which was respected and recognized by the Indians from remote times. This right of individual Indian families to use, occupy, and fish from specific fishing stations amounted primarily to a right, infrequently exercised, to exclude others from using the same stations. It was a right which the Indians recognized by custom and usage as passing down from one generation to the next through the family line. The right could not be sold or transferred by its immediate holder."²

With the growth of commercial fishing for canning purposes and the appearance of Indian fishermen without ancestral fishing stations, disputes arose as to the use of the stations. There were no records of the claimed rights. To meet this situation the Celilo Fish Committee, composed of three Indians from each of the affected reservations, plus representatives of nonreservation Indians, was organized through the local Indian Superintendents in 1935. Frequently the Committee used the "ancient Indian custom of inheritance and succession," to determine rights of fishing at stations.³

The growth of the Northwest and the increasing need for power and flood control caused Congress to enact water power legislation. The construction that is involved in this case is The Dalles Dam on the Columbia River between Washington and Oregon. Appropriation was made in 1950. 64 Stat. 179. Previously Congress had been advised of the fishery situation at Celilo Falls.⁴ In an appropriation act for the civil functions of the Army, 1953, 67 Stat. 197, authority for compensation for the loss of the fishing rights in question was made. The act provided that, except in the case of Indians not enrolled in tribes, the payments were to be made to the respective tribes, not to the individual fishermen.⁵ Pursuant to this authority an agreement was reached between the United States and the Yakima Tribe on December 17, 1954. Paragraph 2 of the agreement provided for payment to the Tribe of some fifteen million dollars for all of its fishing privileges,

"* * * as full consideration for the destruction or inundation of these usual and accustomed fishing stations within the area shown by shading upon Exhibit `A\' hereof and for the release and subordination hereinafter set forth in paragraph 5.

* * * * * *

"(d) Payment shall be made by depositing the amounts, set forth in paragraphs 2(b) and 2(c) hereof, in the United States Treasury for the account of the Tribe, * * *.

"(e) No payments will be made under the agreement for the real or personal property of individual members of the Tribe or for removal of cemeteries or burial grounds. * * or to the individual members of the Tribe for the cost of constructing or removing temporary fishing platforms as distinct from any compensable interest which individual members of the Tribe may be able to establish in permanent fishing platforms, cableways and appurtenances."

"5. Release and Subordination. The Tribe, for and in consideration of performance by the Government of the obligations and terms hereof to be kept, observed and performed by the Government, by these presents for themselves and their agents, assigns or successors and for their people and their descendants forever, do hereby subordinate the rights of the Tribe to take fish and to build and maintain drying sheds at those usual and accustomed stations within the areas as shown shaded on Exhibit `A\', hereof, as reserved in the Treaty of June 9, 1855, 12 Stat. 951, to the right of the Government to construct, maintain, and operate the project, and do hereby release and forever discharge the Government, its officers and agents, of and from all manner of action and causes of action, suits and causes of suit, debts, damages, charges, expenses, claims and demands whatsoever, which the said Tribe or their agents, assigns or successors or their people or their descendants may now or hereafter have by reason of or resulting from the construction, operation, and maintenance of the Project, * *".

This agreement was aproved by the Yakima General Council and Tribal Council on December 17, 1954.

Minnie and Ambrose Whitefoot, members of the Yakima Tribe and residing on the Reservation, protested the per-capita distribution of the fifteen million dollar payment which gave $3,270 to each enrolled tribal member, including children of which the Whitefoots had five, on the ground of inadequacy, but accepted those portions of the money on the basis of economic necessity and without prejudice to this litigation. See Finding of Fact 22.

The respective exceptions to the Findings of Fact of the Commissioner have been examined. We are satisfied that the findings are adequately supported by the record and we approve and adopt them as our own.

The basis of plaintiff Minnie Whitefoot's claim is that she was the owner of six "usual and accustomed fishing stations" descended to her as heir of her father, recognized as hers by tribal custom and used by her through the years.⁶ Defendant denies that the right to use these stations exclusively rested in Minnie Whitefoot. The issue is whether the right to use these six fishing stations, with easements on the public lands at Celilo Falls no different from those of other similar stations, were her individual private property or a part of the communal property of the tribe. If Minnie's claim of private ownership is found correct, she would, she argues, be entitled to a payment for the value of the use of these stations.

We have heretofore called attention to the fact that the appropriation acts authorized payments to the tribes. Here it is the Yakima Tribe. The agreement of December 17, 1954, for payment of the fifteen million dollars, quoted above, was for the destruction of the usual and accustomed fishing stations preserved to the Yakimas by the treaty of June 9, 1855, Article III, quoted above. Paragraph 5 of that agreement of 1954, also quoted above, subordinated the rights of "the Tribe to take fish." One cannot conclude from the Act authorizing payment and the contract otherwise than that the Congress, the Engineers and the Yakima Nation looked upon the fishing stations as the latter's property to be used as it might determine for its own benefit.

Such communal holding of property is in accord with normal Indian custom. Land is so held whether by Indian title or after creation of a reservation.⁷ The general rights of the individual in tribal property are discussed in Federal Indian Law (1958), U. S. Government Printing Office, a revision and updating through the year 1956 of Felix S. Cohen's Handbook of Federal Indian Law. A few excerpts will show the theory.⁸

In Powers of Indian Tribes, 55 Interior Dec. 14, 50, tribal powers over property are considered at length.

"The powers of an Indian tribe with respect to tribal land are not limited by any rights of occupancy which the tribe itself may grant to its members. The proposition that occupancy of tribal land does not create

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