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Document:
Boldt Decision
UNITED STATES of America, Plaintiff, Quinault Tribe of
Indians on its own behalf and on behalf of the Queets Band of
Indians, et al., Intervenor-Plaintiffs, v. STATE OF WASHINGTON, Defendant, Thor C.
Tollefson, Director, Washington State Department of Fisheries, et al.,
Intervenor-Defendants
Civ. No. 9213
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, TACOMA
DIVISION
384 F. Supp. 312;
1974 U.S. Dist. LEXIS 12291
February 12, 1974
SUBSEQUENT HISTORY:
[**1]
On Question Per Reconsideration Motion March 22, 1974.
COUNSEL: Stan Pitkin, U.S. Atty., Stuart F. Pierson, Sp. Asst. U.S. Atty., Seattle,
Washington, for the U.S.; George D. Dysart, Asst. Regional Sol., U.S. Dept. of
the Interior, Portland, Oregon, of counsel.
David H. Getches, Native American Rights Fund, Boulder, Colorado, and John H.
Sennhauser, Legal Services Center, Seattle, Washington, for Muckleshoot
Indian Tribe, Squaxin Island Tribe of
Indians, Sauk-Suiattle
Indian Tribe, Skokomish
Indian Tribe, Stillaguamish
Indian Tribe.
Alvin J. Ziontz, Ziontz, Pirtle, Morisset
& Ernstoff, Seattle, Washington, for Makah
Indian Tribe, Lummi
Indian Tribe, Quileute
Indian Tribe.
Michael Taylor, Taholah, Washington, for Quinault Tribe of
Indians.
James B. Hovis, Hovis, Cockrill
& Roy, Yakima, Washington, for Yakima
Indian
Tribe.
Lester Stritmatter, Stritmatter
& Stritmatter, Hoquiam, Washington, for Hoh Tribe of
Indians.
William A. Stiles, Jr., Sedro-Woolley, Washington, for Upper Skagit River Tribe.
Slade Gorton, Atty. Gen., Edward B. Mackie, Deputy Atty. Gen., Olympia,
Washington, for State of Washington.
Joseph Larry Coniff, Jr., Asst. Atty. Gen., Dept. of Game, Olympia, Washington,
[**2] for Game Defendants
& Carl Crouse.
Earl R. McGimpsey, Asst. Atty. Gen., Dept. of Fisheries, Olympia, Washington,
for Thor Tollefson.
David E. Rhea, Amundson, Rhea
& Atwood, Bellingham, Washington, for Washington, Reef Net Owners Ass'n.
Lawrence C. Smith, Smith, Smith
& Smith, Spokane, Washington, for amicus curiae The Ass'n of Northwest
Steelheaders, Inc.
William N. Moloney, Davis,
Wright, Todd, Riese
& Jones, Seattle, Washington, for amicus curiae Washington, State Sportsmen's
Council, Inc.
T. J. Jones, III, Sp. Counsel, Jones
& Jones, Boise, Idaho, for amicus curiae Idaho Fish and Game Dept.
JUDGES: Boldt, Senior District Judge.
OPINIONBY: BOLDT
OPINION:
[*326]
| INDEX |
| | Page |
| | (Per typed text) |
| I. | STATEMENT OF THE CASE | 327 |
| II. | ESTABLISHED BASIC FACTS AND |
| LAW | 330 |
| III. | SUMMARY OF FINDINGS OF FACT |
| AND CONCLUSIONS OF LAW | 332 |
| IV. | STATE REGULATION OF OFF RES- |
| ERVATION TREATY RIGHT FISH- |
| ING | 334 |
| V. | RULINGS ON MAJOR ISSUES | 339 |
| VI. | FINDINGS OF FACT: | 348 |
| A. Treaty Status of Plaintiff Tribes | 348 |
| B. Pretreaty Fishing Among North- |
| west
Indians | 350 |
| C. Treaty Background | 353 |
| D. Negotiation and Execution of the |
| Treaties | 355 |
| E. Post Treaty
Indian Fishing | 357 |
| F. Historic and Present Status of |
| Each Plaintiff Tribe: | 359 |
| 1. Hoh Tribe | 359 |
| 2. Lummi Tribe | 360 |
| 3. Makah Tribe | 363 |
| 4. Muckelshoot Tribe | 365 |
| 5. Nisqually Tribe | 367 |
| 6. Puyallup Tribe | 370 |
| 7. Quileute Tribe | 371 |
| 8. Quinault Tribe | 374 |
| 9. Sauk-Suiattle Tribe | 375 |
| 10. Skokomish Tribe | 376 |
| 11. Squaxin Island Tribe | 377 |
| 12. Stillaguamish Tribe | 378 |
| 13. Upper Skagit River Tribe | 379 |
| 14. Yakima Nation | 379 |
| G. General Fisheries Conservation |
| and Management | 382 |
| H. Department of Fisheries Policies |
| and Practices | 389 |
| I. Department of Game Policies and |
| Practices | 393 |
| VII. | CONCLUSIONS OF LAW | 399 |
| VIII. | DECLARATORY JUDGMENT AND |
| DECREE | 405 |
| XI. | RULINGS ON FISHERIES' RECON- |
| SIDERATION MOTION QUESTIONS | 408 |
| X. | PROPOSED AMENDMENTS AND |
| RULINGS THEREON | 412 |
| XI. | INJUNCTION | 413 |
| XII. | INTERIM PLAN AND STAY ORDER |
| PENDING FINAL DECISION ON |
| APPEAL | 420 |
| Note: | FD - Final Decision #I |
| FF - Findings of Fact |
| CofL - Conclusions of Law |
| DCJ&D - Declaratory Judgment
& Decree |
[**3]
[*327] STATEMENT OF THE CASE
BOLDT, Senior District Judge.
In September, 1970 the United States, on its own behalf and as trustee for
several Western Washington
Indian
Tribes, n1 later joined as intervenor plaintiffs by additional
tribes, n2 filed the complaint initiating this action against the State of
Washington. Shortly later the State Department of
Fisheries (Fisheries) and the State
Game Commission (Game), their respective directors, and the Washington
Reef Net Owners Association (Reef Net Owners) were included as defendants. By state statute
Fisheries is charged with exercising regulatory authority over
fishing for all
anadromous food
fish.
Regulation of
anadromous
steelhead trout is vested in
Game. Plaintiffs seek a declaratory judgment pursuant to
28 U.S.C. §§ 2201 and 2202 concerning off
reservation
treaty right
fishing within the case area by
plaintiff
tribes, which long has been and now is in controversy, and for injunctive
[*328] relief to provide enforcement of those
fishing rights as they previously have been or herein may be judicially determined.
The case area is that portion of the State of Washington west of the Cascade
Mountains and north of the Columbia
[**4]
River drainage area, and includes the American portion of the Puget Sound watershed,
the watersheds of the Olympic Peninsula north of the Grays Harbor watershed,
and the offshore
waters adjacent to those areas.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 Hoh
Tribe; Makah
Tribe, Muckleshoot
Tribe; Nisqually
Tribe; Puyallup
Tribe; Quileute
Tribe; Skokomish
Tribe.
n2 Lummi
Tribe; Quinault
Tribe; Sauk-Suiattle
Tribe; Squaxin Island
Tribe; Stillaguamish
Tribe; Upper Skagit
River
Tribe; Yakima Nation.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Plaintiffs also assert claims for relief concerning alleged destruction or
impairment of
treaty right
fishing due to state authorization of, or failure to
prevent, logging and other industrial pollution and obstruction of
treaty right
fishing streams. Separation of those claims for pretrial and trial after trial of the
issues determined in this decision was stipulated and approved by the court.
Venue is properly laid in this court under
28 U.S.C. § 1391(b). Jurisdiction is alleged as to all
tribes under one or more of the following provisions:
28 U.S.C.
[**5] §§ 1345, 1331, 1343(3) and (4) and 1362. n3 All of these allegations were conceded by
all defendants, subject to their contention that exclusive jurisdiction to hear
and determine the issues in this case is in the
Indian Claims Commission under
25 U.S.C. §§ 70-70v and
Game's denial of jurisdiction as to the Puyallup
Tribe. This court has previously held and hereby affirms that both of these
contentions are without merit and denied. It is hereby found and held that
jurisdiction and venue have been established in all particulars as detailed in
Part One of the Final Pretrial Order.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 See Final Pretrial Order paragraph 1.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Fisheries contends the Muckleshoot, Stillaguamish and Upper Skagit
tribes do not hold a special
treaty status to
harvest
anadromous
fish.
Game joins in this contention and makes the same contention regarding the
Sauk-Suiattle
Tribe. These contentions are considered and denied in the written Findings of Fact
and Conclusions of Law.
Shortly after appearance in the action by all defendants the first
[**6] of a considerable number of pretrial conferences was held. Among many
preliminary matters considered at that time were the court's suggestions that
so far as possible all
tribes, agencies or organizations having or claiming direct or indirect justiciable
interest in
treaty
fishing rights in this judicial district be brought into the case either as parties or
as amicus curiae; and that every issue of substantial direct or
indirect significance to the contentions of any party be raised and adjudicated
in this case. Both suggestions were acceptable to all parties and to a great
extent they have been put into effect. Thus every interested agency and
organization not joined as a party has had an opportunity to present its views
on any of the issues in the case. n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n4 The following agencies or organizations have submitted, or concurred in,
written briefs: Idaho
Fish
&
Game Department; Port of Seattle; Washington State Sportsmen's Council, Inc.;
Northwest Steelheaders, Inc.; Committee to Save Our
Fish; Tacoma Sportsmen's Club, Inc.; Tacoma Poggie Club, Inc.; Purse Seine Vessel
Owners Association.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**7]
For more than three years, at the expenditure by many people of great time,
effort and expense, plaintiffs and defendants have conducted exhaustive
research in anthropology, biology,
fishery management and other fields of expertise, and also have made
extreme efforts to find and present by witnesses and exhibits as much
information as possible that pertains directly or indirectly to each issue in
the case. As a consequence of this extensive pretrial preparation, all parties
joined in stipulating to a great many agreed facts which are stated in exhibits
or included in the Final Pretrial Order. The Joint Biological Statement,
Exhibit JX-2a, jointly proposed and admitted in evidence as agreed facts
applicable as indicated therein, was prepared by and agreed to by highly
qualified experts employed by and representing both plaintiffs and defendants
and is of exceptional importance
[*329] and practical value. It is believed considerable historic and scientific
information never before presented in a case involving
treaty rights is now recorded and may prove of value in later proceedings in this
case and possibly in others.
To great advantage, all
procedures recommended in the Manual
[**8] for Complex Litigation have been followed by counsel in the particulars and to
the extent found applicable and practicable by the court. With approval of
court and counsel upon its entry the Final Pretrial Order became the final
statement of all issues to be heard and determined in this decision, and
pleadings pertaining to those issues passed out of the case, subject only to
amendment by the court to prevent manifest injustice. Such amendments have been
included in the text of the Final Pretrial Order.
Every attorney in the case has vigorously and effectively presented the
particular interests and contentions of each client he represents to the
maximum extent professional duty requires. On the other hand there has been a
remarkable degree of highly responsible and most commendable cooperation on the
part of all counsel throughout trial preparation and trial which has greatly
expedited discovery and full presentation of the issues and evidence in the
case. All of the legal issues have been
researched in depth and effectively presented and argued in the pretrial
briefs, and in the final briefs submitted after the presentation of evidence
was concluded and before final argument, which
[**9] also was exceptional in professional quality. By direction of the court all
parties either individually or jointly, as they chose, prepared and submitted
proposed findings of fact and conclusions of law referenced to the record and
also drafts of a proposed decree. Each proposed finding, conclusion and decree
has been closely examined and considered by review of the evidence and the
portions of the briefs pertaining to each item. All fact findings and legal
rulings stated herein and the detailed Findings of Fact, Conclusions of Law and
Decree signed and entered by the court are hereby made a part of this decision.
On January 11, 1974, when
Game filed the final version of its proposed findings, conclusions and decree the
issues tried were finally submitted for decision.
This court is confident the vast
majority of the residents of this state, whether of
Indian heritage or otherwise, and regardless of personal interest in
fishing, are fair, reasonable and law abiding people. They expect that kind of
solution to all adjudicated controversies, including those pertaining to
treaty right
fishing, and they will accept and abide by those decisions even if adverse to
interests of their occupation
[**10] or recreational activities.
More than a century of frequent and often violent controversy between
Indians and non-Indians over
treaty right
fishing has resulted in deep distrust and animosity on both sides. This has been
inflamed by provocative, sometimes illegal, conduct of extremists on both sides
and by irresponsible demonstrations instigated by non-resident opportunists.
To this court the evidence clearly shows that, in the past, root causes of
treaty right dissension have been an almost total lack of meaningful communication on
problems of
treaty right
fishing between state, commercial and
sport
fishing officials and non-Indian
fishermen on one side and
tribal representatives and members on the other side, and the failure of many of them
to speak to each other and act as fellow citizens of equal standing as far as
treaty right
fishing is concerned. Some commendable improvement in both respects has developed in
recent years but this court believes high priority should be given to further
improvement in communication and in the attitude of every
Indian and non-Indian who as a fisherman or in any capacity has responsibility for
treaty right
fishing practices or
regulation. Hopefully
[**11] that will be expedited
[*330] by some of the measures required by this decision.
The ultimate objective of this decision is to determine every issue of fact and
law presented and, at long last, thereby finally settle, either in this
decision or on appeal thereof, as many as possible of the divisive problems of
treaty right
fishing which for so long have plagued all of the citizens of this area, and
still do.
I. ESTABLISHED BASIC FACTS AND LAW
(Hereinafter italicize emphasis added unless otherwise indicated)
The first decision of the United States Supreme Court on
Indian
treaty rights,
Cherokee Nation v. Georgia, 5 Pet. 1, 30 U.S. 1, 8 L. Ed. 25, was written by Chief Justice Marshall in 1831. Since then decisions on the
same subject matter have been rendered in that court, other federal courts and
state courts in a considerable number to the present time. n5 All of the
decisions that appear to have direct or indirect application to the present
case have been closely reviewed and analyzed, individually and in relation to
each other. Based thereon this court finds and holds that the following
statements are now well established in fact and law.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 The Table of Cases appended hereto includes only all cases which have been
cited by any
party as authority pertaining to any issue in this case and other cases
considered by the court. In the table, the abbreviated title of each case
referred to in the decision is italicized.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**12]
1. Art. VI, cl. 2 of the United States Constitution provides:
The
"Constitution . . . of the United States . . . and all
Treaties made, or which shall be made, under the Authority of the United States, shall
be the supreme Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding."
2. To the great advantage of the people of the United States, not only in
property but also in saving lives of citizens, and to expedite providing for
what at the time were immediate and imperative national needs, Congress chose
treaties rather than conquest as the means to acquire vast
Indian lands. It ordered that
treaty negotiations with the plaintiff
tribes and others in the
Northwest be conducted as quickly as possible. Isaac I. Stevens, Governor of
Washington Territory, proved to be ideally suited to that purpose for in less
than one year during 1854-1855 he negotiated eleven different
treaties, each with several different
tribes, at various places distant from each other in this rugged and then primitive
area. The
treaties were written in English, a language unknown to most of the
tribal representatives,
[**13] and translated for the
Indians by an interpreter in the service of the United States using Chinook Jargon,
which was also unknown to some
tribal representatives. Having only about three hundred words in its vocabulary, the
Jargon was capable of conveying only rudimentary concepts, but not the
sophisticated or implied meaning of
treaty provisions about which highly learned jurists and scholars differ. n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6 Exhibit (Ex) USA-20, pp 24-29;
Finding of Fact (FF) #2.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In 1899 the United States Supreme Court in considering a similar situation said:
"In construing any
treaty between the United States and an
Indian
tribe, it must always (as was pointed out by the counsel for the appellees) be borne
in mind that the negotiations for the
treaty are conducted, on the part of the United States, an enlightened and powerful
nation, by representatives skilled in diplomacy, masters of a written language,
understanding the modes and forms of creating the various technical estates
known to their law, and assisted by an interpreter
[**14] employed by themselves; that the
[*331]
treaty is drawn up by them and in their own language; that the
Indians, on the other hand, are a weak and dependent people, who have no written
language and are wholly unfamiliar with all the forms of legal expression, and
whose only knowledge of the terms in which the
treaty is framed is that imparted to them by the
interpreter employed by the United States; and that the
treaty must therefore be construed, not according to the technical meaning of its
words to learned lawyers, but in the sense in which they would naturally be
understood by the
Indians. Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515 [8 L. Ed. 483];
The Kansas Indians, 72 U.S. 737, 5 Wall. 737, 760 [18 L. Ed. 667];
Choctaw Nation v. United States, 119 U.S. 1, 27, 28 [7 S. Ct. 75, 30 L. Ed. 306, 314, 315] . . . . 'The language used in
treaties with the
Indians should never be construed to their prejudice.' . . . 'How the words of the
treaty were understood by this unlettered people, rather than their critical meaning,
should form the rule of construction.'" n7
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7
Jones, 175 U.S. at 10, 11, 12, 20 S. Ct. at 5; other decisions by the same court containing the same or similar language:
Cherokee, Worcester, Kansas
Indians, Winans, Kennedy, Seufert, Tulee.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**15]
In 1905 the above principles were reiterated in
Winans (198 U.S. p. 380, 25 S. Ct. p. 664):
"And we have said we will construe a
treaty with the
Indians as 'that unlettered people' understood it, and 'as justice and reason demand,
in all cases where power is exerted by the strong over those to whom they owe
care and protection,' and counterpoise the inequality 'by the superior justice
which looks only to the substance of the right, without regard to technical
rules.' [citing
Choctaw and
Jones]"
3. The United States Supreme Court in
Missouri (252 U.S. p. 434, 40 S. Ct. p. 384) stated:
"Valid
treaties of course 'are as binding within the territorial limits of the States as they
are
elsewhere throughout the dominion of the
United States.' Baldwin v. Franks, 120 U.S. 678, 683, 7 S. Ct. 656, 30 L. Ed. 766."
4. Each of the basic fact and law issues in this case must be considered and
decided in accordance with the
treaty language reserving
fishing rights to the plaintiff
tribes, interpreted in the spirit and manner directed in the above quoted language of
the United States Supreme Court. Each
treaty in this case contains a provision substantially
[**16] identical to that in the Medicine Creek
treaty:
"The right of taking
fish, at all usual and
accustomed grounds and stations, is further secured to said
Indians, in common with all citizens of the territory, and of erecting temporary houses
for the purpose of curing, . . ." n8
5.
"The right to resort to the [usual and
accustomed]
fishing places in controversy was a part of larger rights
possessed by the
Indians, upon the exercise of which there was not a shadow of impediment, and which
were not much less necessary to the existence of the
Indians than the atmosphere they breathed. . . . [The]
treaty was not a grant of rights to the
Indians but a grant of right from them -- a
reservation of those not granted." n9
"And surely it was within the competency of the Nation to secure to the
Indians such a remnant of the great rights they possessed as 'taking
fish at all usual and
accustomed places.'" n10
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Text of all
treaties FF #1.
n9 U.S.Sup.Ct. in
Winans, 198 U.S. at 381, 25 S. Ct. at 664.
n10
Id. at 384, 25 S. Ct. at 665.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**17]
6.
". . . [The] [treaty] negotiations were with the
tribe. They reserved rights, however, to every individual
Indian, as though named therein. . . . And the right was intended to be continuing
against the United States and its grantees as well as against the State and its
grantees." n11 That those
rights are also reserved to the descendants
[*332] of
treaty
Indians, without limitation in time, excepting as Congress may determine, has been
recognized and applied by the United States Supreme Court from the first to the
latest decision of that court involving
Indian
treaty
fishing rights.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n11
Id. at 381-382, 25 S. Ct. at 664.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
7. An
exclusive right of
fishing was reserved by the
tribes within the area and boundary
waters of their
reservations, n12 wherein
tribal members might make their homes if they chose to do so. The
tribes also reserved the
right to off
reservation
fishing
"at all usual and
accustomed grounds and stations" and agreed that
"all citizens of the territory" might
fish at the same
[**18] places
"in common with"
tribal members. The
tribes and their members cannot rescind that agreement or limit non-Indian
fishing pursuant to the agreement. However, off
reservation
fishing by other citizens and residents of the state is not
a
right but merely a
privilege which may be granted, limited or withdrawn by the state as the interests of
the state or the exercise of
treaty
fishing rights may require.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n12 This proposition is not denied or challenged by any party in this case. As
previously stated in paragraph 4 of the text, the
fishing clauses are substantially identical in the
treaties of all plaintiff
tribes. The
fishing clause in the Yakima
treaty applies the word
"exclusive" to on
reservation
fishing. Although the word is used in the same context in several other
treaties not involved in this case it does not appear in the
treaty of any other plaintiff
tribe. However, in every case involving a
fishing clause substantially similar to that quoted in the text of this decision in
which
"exclusive" is not present, without exception the United States Supreme Court has assumed
that on
reservation
fishing
is exclusive and has interpreted and applied similar
fishing clauses as though the word
"exclusive" was expressly stated therein as in the Yakima
treaty. Research has not disclosed any reported decision to the contrary.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**19]
8. The
tribes reserved the right to
fish at
"all usual and
accustomed grounds and stations." The words
"grounds" and
"stations" have substantially different meanings by dictionary definition and as
deliberately intended by the authors of the
treaty.
"Stations" indicates fixed locations such as the
site of a
fish wier or a
fishing platform or some other narrowly limited area;
"grounds" indicates larger areas which may contain numerous stations and other
unspecified locations which in the urgency of
treaty negotiations could not then have been determined with specific precision and
cannot now be so determined.
"Usual and
accustomed," being closely synonymous words, indicate the exclusion of unfamiliar locations
and those used infrequently or at long intervals and extraordinary occasions.
Therefore, the court
finds and holds that every
fishing location where members of a
tribe customarily fished from time to time at and before
treaty times, however distant from the then usual habitat of the
tribe, and whether or not other
tribes then also fished in the same
waters, is a usual and
accustomed ground or station at which the
treaty
tribe reserved, and its members presently have, the
[**20] right to take
fish. n13
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n13
Seufert and see F.F. 10 and 13.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
II. SUMMARY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW
This summary of the 253 separate detailed Findings of Fact and 48 Conclusions
of Law filed herewith is intended as a recital of only the principal categories
thereof, several of which are discussed elsewhere in this opinion.
The Findings of Fact set forth the
treaties under which each
tribe, or its predecessors, negotiated with the United States, and in which the
Indians expressly reserved the right to
fish at off
reservation usual and
accustomed
fishing places. The
pre-treaty role of
fishing among Northwest
Indians is outlined, emphasizing the universal importance of the
fishery resource, particularly
salmon and
steelhead, to
Indians in the case area as an element of diet and in
[*333] religious practices and trade. The Northwest
Indians developed a wide variety of
fishing methods which they utilized to
catch many varieties of
fish at innumerable locations throughout the areas where
[**21] they lived and traveled.
In the mid-1850's the United States treated with the unlettered Northwest
Tribes to acquire great expanses of land. Reluctant to be confined to small
reservation bases, the
Indian negotiators insisted that their people continue to
fish as they had beyond the
reservation boundaries. There is no indication that the
Indians intended or understood the language
"in common with all citizens of the Territory" to limit their right to
fish in any way. For many years following the
treaties the
Indians continued to
fish in their customary manner and places, and
although non-Indians also fished, there was no need for any restrictions on
fishing.
For each of the plaintiff
tribes, the findings set forth information regarding the organization and
membership of the
tribe, and some, but by no means all, of their principal usual and
accustomed
fishing places. Anthropological data are also presented for several
tribes, as well as information concerning present
Indian culture and economy. Several
tribes are currently involved in
fish propagation programs which benefit the
tribes and the state.
Fact findings are also presented regarding
reef net
fishing which show that current
[**22] non-Indian
reef net operations take place at or near the same locations occupied historically
by Lummi
Indian
fishermen.
General
fisheries
conservation and management data are presented, incorporating the Joint Biological
Statement which sets forth many significant facts concerning
anadromous
fish. Procedures and objectives are outlined
for managing
salmon and
steelhead for commercial,
sport and
Indian user groups including regulatory schemes promulgated by state authorities and
by
Indian
tribes. The means and locations used to
harvest the resource and the quantity of the
harvest are also presented.
The policies and practices of both
Fisheries and
Game are also presented. Due in part to the nature of the
species of
fish regulated,
Fisheries evidences better success in managing the
salmon than does
Game with regard to
steelhead.
Fisheries has also evidenced an attitude of cooperation with the plaintiff
tribes that has been lacking from
Game, at least prior to
Puyallup-II.
The Conclusions of Law, after stating the basis of jurisdiction and venue,
establish the
treaty status of each of the plaintiff
tribes, and therefore, the right of their members to
fish off
reservation in common
[**23] with the citizens of the state. The
fishing right was reserved by the
Indians and cannot be qualified by the state. The state has police power to regulate
off
reservation
fishing only to the extent reasonable and necessary for
conservation of the resource. For this purpose,
conservation is defined to mean perpetuation of the
fisheries
species. Additionally, state
regulation must not discriminate against the
Indians, and must meet appropriate due process standards.
The Yakima Nation and the Quinault
Tribe are presently qualified to self-regulate the off
reservation
fishing of their
tribal members. Other
tribes may similarly self-regulate member
fishing if and when they meet the qualifications and conditions set forth in the
decision.
Several current state laws and
regulations which restrict the time, place, manner and volume of off
reservation
fishing by
treaty
tribes, and reserve
game
fish for
sport interests, have not been established as reasonable and necessary for
conservation and the application thereof to plaintiff
tribes is unlawful. The court will retain continuing jurisdiction of this case to
grant such further relief as the court
may find appropriate.
[*334] III.
[**24] STATE
REGULATION OF OFF
RESERVATION
TREATY RIGHT
FISHING
There is neither mention nor slightest intimation in the
treaties themselves, in any of the
treaty negotiation records or in any other credible evidence, that the
Indians who represented the
tribes in the making of the
treaties, at that time or any time afterward, understood or intended that the
fishing rights reserved by the
tribes as recorded in the above quoted language would, or ever could, authorize the
"citizens of the territory" or their successors, either individually or through their territorial or state
government, to qualify, restrict or in any way interfere with the full
exercise of those rights. All of the evidence is overwhelmingly to the contrary,
particularly in the vivid showing in the record that the
treaty
Indians pleaded for and insisted upon retaining the
exercise of those rights as essential to their survival. They were given unqualified
assurance of that by Governor Stevens himself without any suggestion that the
Indians'
exercise of those rights might some day, without
authorization of Congress, be subjected to
regulation by non-Indian citizens through their territorial or state government.
[**25] n14
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n14 Ex. USA-20 pp 24-29, 42-43; FF #2.
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For several decades following negotiation and ratification of the
treaties all of the
tribes extensively exercised their
treaty rights by
fishing as freely in time, place and manner as they had at
treaty time, totally without
regulation or any restraint whatever, excepting only by the
tribes themselves in strictly enforcing
tribal customs and practices which, during that period and for innumerable prior
generations, had so successfully assured perpetuation of all
fish
species in copious volume. The first other than naturally caused threat to volume or
species came from non-Indian population growth and non-Indian industrial development in the rapid westward advance of civilization. n15
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n15 Ex. USA-20, pp 39-42; FF #2.
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In the final pretrial order in this case issues were raised therein by the
contentions
[**26] of several
tribes later joined by the remaining plaintiff
tribes that: (a) the state police power dicta followed by the United States Supreme
Court are not sound in legal logic or principle, and (b) even if so, state
regulation of the exercise of
Indian off
reservation
treaty
fishing rights must be denied in
"justice and reason, looking to the substance of the rights reserved as
understood by the
Indians who negotiated the
treaties, without regard to technical rules," as all American courts for a century or more have been repeatedly admonished
by the United States Supreme Court in the same or similar language. n16
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n16 See footnote 7.
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Footnotes- - - - - - - - - - - - - - - - -
In addition to raising the above stated issues in the final pretrial order, the
tribes have submitted well researched briefs and vigorous oral argument in support
thereof. That the contentions are not without at least color of merit in
judicial and scholarly support is shown by a decision of the Supreme Court of
Idaho, n17 the judicial views of at least one highly respected Washington
[**27] State Supreme Court Judge n18 and a scholarly article in The University of
Washington Law Review written by a Law Professor of that University and other
similar articles. n19
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n17
Arthur.
n18 Donworth dissenting in
McCoy (63 Wash.2d p. 439, 387 P.2d 942) and
Game-I (70 Wash.2d p. 263, 422 P.2d 754); and in
Satiacum (50 Wash.2d p. 529, 314 P.2d 400) a 4-4 decision.
n19 R. Johnson, 47 U.Wash.L.Rev. 207 (1972); C. Hobbs,
37 Geo.Wash.L.Rev. 1251 (1969); Comment, 59 U.Calif.L.Rev. 485 (1971).
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No federal decision or state decision cited to this court has directly and
specifically interpreted the clause
"in common with all citizens of the Territory" as, in itself, directly or impliedly justifying state police power
regulation of off
reservation
treaty right
fishing, or
[*335] has specifically stated or even indicated any federal source of or basis for
such state power.
Under these circumstances and the facts hereinabove recited, judicial integrity
requires that this court must give the
[**28]
tribes' above stated contentions serious consideration and specific determination.
The first
decision of the United States Supreme Court, later cited by the same court as
authority for state
regulation of
treaty right
fishing, is
Ward. On that subject unquestionably the decision was obiter dictum because: (a)
the
Indian hunting rights reserved in the
treaty in question were limited to specifically designated areas outside of which
Race Horse hunted, for which he was imprisoned and from which he sought
enlargement by habeas corpus; and (b) because later in the opinion it was held
the
treaty hunting rights in question had been finally terminated by Congress prior to
the allegedly criminal hunting by Race Horse.
The only statement in
Ward in either the majority or minority opinions that could possibly justify later
citation of the decision as applicable to
treaty right
fishing was the single sentence
163 U.S. on page 507, 16 S. Ct. on page 1076:
"The power of a state to
control and regulate the taking of
game cannot be questioned.
Geer v. Connecticut, 161 U.S. 519, [16 S. Ct. 600, 40 L. Ed. 793."
However, in the next preceding paragraph of the majority opinion
[**29] in
Ward two sentences before the sentence just quoted, the majority opinion stated:
". . . the sole question which the case presents is whether the
treaty made by the United States with the Bannock
Indians gave them the right to exercise the hunting privilege, therein (the
treaty) referred to within the limits of the state of Wyoming in violation of its
laws. If it [the
treaty] gave such right, the mere fact that the state had created school districts or
election districts, and had provided for pasturage on the lands, could no more
efficaciously operate to destroy the right of the
Indian to hunt on the lands
than could passage of the [state]
game law."
This statement, even if it too be a dictum, is far more sound in
treaty law
applicable to
fish and
game
regulation than the first statement quoted above.
Thus the second statement in
Ward, quoted in the paragraph above to the effect that exercise of
treaty right hunting cannot be controlled by state regulatory laws would appear to be
compelling, or at least equal, authority for denying state
regulation, not authorized by Congress, of
Indian
fishing off
reservation as specified in existing
treaties
[**30] which expressly record and recognize
reservation of that right by the
Indian
tribes.
In
Geer, Mr. Justice White, speaking for a 5-2 majority traced in detail principles
pertaining to the taking of
ferae naturae down through the ages from Solon of ancient Athens to 1895, but
treaty rights were not involved in that case or even mentioned in any way whatever in
the exhaustive opinion. The only issue decided
in
Geer was the holding that it was not unconstitutional for Connecticut to allow, by
regulation, killing of birds within the state during a designated open
season, and to permit such birds, when so killed, to be used, sold and bought for use
within the state, but forbid their transportation beyond the state. Hence the
statement in
Geer as well as that in
Ward, on the subject of off
reservation
treaty right
fishing, were both purest dicta.
Ward was not cited in
Winans, wherein state power to regulate off
reservation
treaty
fishing was assumed without any explanation or citation of authority. That subject was
mentioned only in the concluding clause of a sentence
(198 U.S. p. 384, 25 S. Ct. p. 665):
". . . nor does it [the right to take
fish] restrain
[**31] the state unreasonably, if at all, in the
regulation of the right."
[*336]
Geer, Ward, Patsone and
Lacoste are cited in footnote #2 of
Tulee (315 U.S. p. 683, 62 S. Ct. 864, 86 L. Ed. 1115) as supporting the only statement in that opinion referring to the state power
to regulate off
reservation
fishing:
"Relying upon its broad powers to conserve
game and
fish within its borders, (2) however, the state asserts that its right to regulate
fishing may be exercised at places like the scene of the alleged offense, which,
although within the territory originally ceded by the Yakimas, is outside of
their
reservation."
In
Patsone the United States Supreme Court reviewed the conviction of an alien for
possession of a shotgun in violation of a state criminal statute. One of the
two defenses presented and determined in the decision was based on provisions
of a United States
treaty with Italy. The
treaty provisions and facts in
Patsone are totally dissimilar to those in the present case and nothing
in the holdings or language in the opinion directly or by implication would
legally authorize state
regulation of a federally guaranteed civil right which is
[**32] expressly stated in a
treaty and the exercise of which right could not possibly endanger the personal
safety of any resident of the State.
Treaty rights were in no way involved in
Lacoste. The only statement in that decision
(263 U.S. p. 549, 44 S. Ct. 186) concerning state police power to regulate the taking of wild animals is
supported by citation of
Geer, Ward, Kennedy and other decisions having only remote applicability in either fact or law to
the present case.
The remaining
treaty right
fishing decisions of the United States Supreme Court are
Puyallup-I and
Puyallup-II. Thus until
Puyallup-I was decided in 1968 there was neither judicial analysis nor citation of a
non-dictum decision supporting police power state
regulation of the exercise of
Indian off
reservation
treaty right
fishing in any Supreme Court decision because all previous Supreme Court references to
that subject were either based solely on the reiterated dicta discussed above
or assumed such authority without discussion of its basis or indication of its
source.
In support of a statement in
Puyallup-I (391 U.S. p. 399, 88 S. Ct. 1725) concerning state
regulation of
treaty
fishing outside
[**33] of
reservations the United States Supreme Court cited
Winans and
Kennedy as forerunners of
Tulee and quoted portions of all three. As indicated above herein, the
Tulee and
Winans quotations were dicta.
In
Kennedy, a habeas corpus proceeding,
Indian lands were transferred by the Seneca
Tribe to private ownership in a 1797
treaty containing a provision which permitted the
Seneca
Indians to
fish in
waters on the lands conveyed
"at will, and at all
seasons of the year, regardless of the provisions of the
game laws of the State of New York." Shortly after that conveyance the lands were resold and continued in private
ownership to the time of
Kennedy, decided in 1915. That decision cites
Geer and
Ward as the sole basis for its statement
(241 U.S. p. 562, 36 S. Ct. p. 707) that
"it is not to be doubted that the power to preserve
fish and
game within its borders is inherent in the sovereignty of the state . . ."
Kennedy paraphrases
Winans for more than
Winans held and quotes the same passing reference to
regulation in
Winans previously quoted above. n20 Most significant of all, it is stated in the very
Kennedy language quoted in
Puyallup-I
[**34] (391 U.S. pp. 399-400, 88 S. Ct. p. 1729) that the
fishing clause
in the
treaty conveyance
"is fully satisfied by considering it a
reservation of a
privilege of
fishing . . ." subject to state
regulation. If at this time anything concerning
treaty
fishing rights should be beyond doubt or question it is the basic principle that the
treaty
fishing of plaintiff
[*337]
tribes in this case is a reserved
right and not a
mere privilege. The
treaty
fishing in
Kennedy was held to be only a
privilege under the peculiar facts of that case. Nothing faintly comparable to those
facts can be found in either
Puyallup-I or the present case.
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n20
". . . nor does it restrain the state unreasonably, if at all, in the
regulation of the right."
(198 U.S. p. 384, 25 S. Ct. p. 665)
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Another statement in
Puyallup-I (391 U.S. p. 398, 88 S. Ct. p. 1728) concerning police power
regulation,
without analysis other than as stated therein, or citation of a non-dictum
authority, is:
"Moreover, the right
[**35] to
fish at those respective [usual and
accustomed] places is not an exclusive one. Rather it is one 'in common with all citizens
of the territory.' Certainly the right of the latter may be regulated. And we
see no reason why the right of the
Indians may not also be regulated by an appropriate exercise of the police power of
the State."
This statement seems to say that because a state has police power to regulate
fishing
privileges which the state has granted and may limit or entirely withdraw, that is
somehow a legal reason for state
regulation of federal
fishing
rights which are expressly reserved in a
treaty which only Congress has authority to limit or modify. If that seeming non
sequitur be the law it certainly is deserving of more specific legal analysis
and justification than it has ever had in any United States Supreme Court
decision.
In
Puyallup-I it is also
stated
(391 U.S. p. 398, 88 S. Ct. p. 1728):
"The
right to
fish 'at all usual and
accustomed' places
may, of course, not be qualified by the State, even though all
Indians born in the United States are now citizens of the United States. [citations]
But the manner of
fishing, the size
[**36] of the take, the restriction of commercial
fishing, and the like may be regulated by the State in the interest of
conservation, provided the
regulation meets appropriate standards and does not discriminate against the
Indians."
That a
treaty
right, guaranteed as the supreme law of the land by the Federal Constitution, can
not be
"qualified" (i.e.
"in some way limited or modified") n21 by a state but the
exercise of the right may be limited or modified by state
regulation, especially when these seemingly conflicting propositions are stated in
consecutive sentences, is very difficult to comprehend. The practical effect of
a difference between
having a constitutional right but only a limited right to
exercise it certainly could not have been understood and accepted by the
"unlettered"
Indians who negotiated the
treaties and it must be little less impossible for their somewhat more sophisticated
present-day descendants to comprehend and accept.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n21 Webster's Third New International Dictionary of the English Language, 1961
Ed. (p. 1858)
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[**37]
Mindful that
treaty
fishing is a right, not a mere privilege, the following sentence from
Murdock, quoted in a footnote (p. 402,
88 S. Ct. p. 1730) of Puyallup-I, seems pertinent:
"The power to tax the exercise of a privilege is the power to control or
suppress its enjoyment."
As stated by the United States Supreme Court in
Winans (198 U.S. pp. 381-382, 25 S. Ct. 662),
treaty
fishing rights are personal rights held and exercised by individual
tribe members. Although the exercise of that particular civil
treaty right may be limited or modified in any particular or to any extent by or with
authority of Congress, n22 that the exercise of such a right may be limited in
any way by the police power of a state, without having previously received
authority to do so from Congress, seems to be diametrically opposed to relevant
treaty law and personal civil rights decisions, particularly those of recent years.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n22
Lone Wolf citing other Supreme Court decisions to the same effect.
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In the
Puyallup-II
[**38] decision, decided less than three months ago, it was stated
(414 U.S. p. 2, 94 S. Ct. p. 332):
"The sole question tendered in the present cases concerns the
regulations
[*338] of the Department of
Game concerning steel head trout."
Other than by recital or quotations from
Puyallup-I and State Supreme Court decisions, in
Puyallup-II there was no discussion of or ruling upon the basis of state police power to
regulate off
reservation
treaty right
fishing unless it be derived from the next to the last paragraph in the opinion of
Justice Douglas (pp. 5-6,
94 S. Ct. p. 333):
"We do not imply that these
fishing rights persist down to the very last steel head in the
river. Rights can be controlled by the need to conserve a
species; and the time may come when the life of a steel head is so precarious in a
particular stream that all
fishing should be banned until the
species regains assurance of survival. The police power of the State is adequate to
prevent the steel head from following the fate of the passenger pigeon; and the
Treaty does not
give the
Indians a federal right to pursue the last living steel head until it enters their
nets."
Whatever
[**39] the above quoted statement may have added to or taken from the right to
exercise the off
reservation
treaty
fishing rights of the plaintiff
tribes, to the present time there never has been either legal analysis or citation of
a non-dictum authority in any decision of the Supreme Court of the Land in
support of its decisions holding that
state police power may be employed to limit or modify the exercise of rights
guaranteed by national
treaties which the federal Constitution mandates must be considered and applied as
"the supreme Law of the Land."
From the above summary of the United States Supreme Court decisions it is clear
the following 1971 comment by the Washington State Supreme Court n23 is not
overstated:
"Surprisingly little judicial attention, we note, has been given to this rather
standard
treaty language [in the
fishing rights clause of
Indian
treaties]."
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n23
Moses-II, 79 Wash.2d at p. 108, 483 P.2d p. 834.
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It also appears that the United States Supreme Court has exercised
[**40] a prerogative specifically reserved by and to Congress in the
treaties. Congress has never exercised its prerogative to either limit or abolish
Indian
treaty right
fishing. In recent years it declined to do the latter by three times failing to enact
proposed legislation for the termination of
Indian
treaty
fishing rights. n24 It may be that the refusal or failure of Congress to exercise a
specific prerogative, by enactment of legislation, would legally justify
judicial exercise of that particular prerogative. If so, it has never been
stated or indicated in any United States Supreme Court decision as the basis or
source of authority for the federal judicial decisions authorizing
state
regulation of off
reservation
treaty
fishing rights.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n24 H.R.J. Res. 698, 87th Cong., 2d Sess. (1962); H.R.J.Res. 48, 88th Cong.,
1st Sess. (1963); S.J.Res. 170
& 171, 88th Cong., 2d Sess. (1964) All have died in committee.
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Since Congress has the power to qualify or revoke any
treaty or any provision thereof, n25 unquestionable federal
[**41] authority is available to provide federal
regulation, or to authorize state
regulation, for the protection of
fishery resources against any threatened or actual harm that might arise from off
reservation
treaty right
fishing by
tribal members limited
only by
tribal
regulation. n26 In these circumstances it is unfortunate, to say the least, that
[*339] state police power
regulation of off
reservation
fishing should be authorized or invoked on a legal basis never specifically
stated or explained. This is particularly true because state
regulation of off
reservation
treaty right
fishing is highly obnoxious to the
Indians and in practical application adds greatly to already complicated and difficult
problems and may stimulate continuing controversy and litigation long into the
future.
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n25 See footnote 22.
n26 With a single possible exception testified to by a highly interested
witness (FF #102) and not otherwise substantiated, notwithstanding three years
of exhaustive trial preparation, neither
Game nor
Fisheries has discovered and produced any credible evidence showing any instance, remote
or recent, when a definitely identified member of any plaintiff
tribe exercised his off
reservation
treaty rights by any conduct or means detrimental to the perpetuation of any
species of
anadromous
fish.
Unfortunately, insinuations, hearsay and rumors to the contrary, usually but
not always instigated anonymously, have been and still are rampant
in Western Washington. Indeed, the near total absence of substantial evidence
to support these apparent falsehoods was a considerable surprise to this court.
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[**42]
Having the judicial duty to independently research, consider and fairly
appraise the
tribes' contentions concerning state
regulation of off
reservation
treaty right
fishing, this court has intended and attempted to do that as conscientiously and
thoroughly as possible within the personal capabilities of the author of this
decision. The results of that effort are above stated as directly and briefly
as the subject matter appeared to permit.
In the opinion of this court, judicial integrity also requires this court to
hold that the
tribes' contention that the state does not have legal authority to regulate the
exercise of their off
reservation
treaty right
fishing must be and hereby is denied by this court. The basis of this ruling is the
indisputable and unqualified duty of every federal circuit or trial judge,
despite academic or personal misgivings, to enforce and apply every principle
of law as it is
directly stated in a decision of the United States Supreme Court. Recently the
United States Supreme Court in
Puyallup-I and
Puyallup-II directly and specifically held that Washington has the power to regulate off
reservation
treaty right
fishing in the particulars and to the
[**43] extent indicated in those decisions, which holding continues in effect unless
and until overruled or modified by that court or by Congress. Accordingly, each
of the rulings on specific issues in this case stated in Section IV of this
decision has been considered and determined on that basis.
IV. RULINGS ON MAJOR ISSUES IN THIS CASE
1. In the detailed Findings of Fact and Conclusions of Law on file herein this
court has found and held and hereby reaffirms that each of plaintiff
tribes in this case, including each of the
tribes whose status as such was challenged by some or all defendants, has established
its status as an
Indian
tribe recognized as such by the federal
government and therefore is entitled to maintain this action for relief based
on a
treaty of the United States negotiated by and for the
tribe, its members at that time and their descendants.
An appeal from a district court decision holding that the Puyallup
reservation no longer exists has not yet been determined. However, in
Menominee (1968) the United States Supreme Court held that termination of a
tribal
reservation established pursuant to a
treaty did not extinguish hunting and
fishing rights, reserved in the
[**44]
treaty by implication, or impair the exercise of such rights within the area of the
terminated
reservation. In the opinion of this court,
treaty right
fishing within the area of a former
Indian
reservation cannot be
exclusive when that
reservation no longer exists, but such
fishing must be
"in common with" non-treaty right
fishermen. It is so found and held and hereby shall be applicable to any plaintiff
tribe, the
reservation of which has been or hereafter
may be terminated.
2. Ever since the first
Indian
treaties were confirmed by the Senate, Congress has recognized that those
treaties established self-government by
treaty
tribes, excepting only as limited in the
treaties, judicial interpretation thereof or by Congress. This basic principle was
confirmed in the first
[*340] United States Supreme Court decision dealing with such a
treaty n27 and has always been expressly or impliedly reaffirmed when applicable in
every succeeding decision of that court. There was a period during which
Congress enacted legislation limiting the exercise of
tribal autonomy in various particulars. However, in the last decade Congressional
legislation has definitely been in the contrary direction,
[**45] notably in the so-called
"Indian Civil Rights Act." n28 Among other measures in that Act encouraging the exercise of
tribal autonomy are those providing for enlarged jurisdiction of
tribal courts, pursuant to which special training of
tribal judges and other court personnel has been in progress for some time and still
continues.
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n27
Cherokee, 30 U.S. p. 15 et seq. (1831)
n28 Pub.L. #90-284 Title II-VII; 82 Stat. pp. 77-81 (1968)
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These measures and others make plain the intent and philosophy of Congress to
increase rather than diminish or limit the exercise of
tribal self-government.
The right to
fish for all
species available in the
waters from which, for so many ages, their ancestors derived most of their
subsistence is the single most highly cherished interest and concern of the
present members of plaintiff
tribes, with rare exceptions even among
tribal members who personally do not
fish or derive therefrom any substantial amount of their subsistence. The right to
fish, as reserved in the
treaties
[**46] of plaintiff
tribes, certainly is the
treaty provision most
frequently in controversy and litigation involving all of the
tribes and numerous of their individual members for many years past.
The philosophy of Congress referred to above and the evidence in this case as a
whole clearly indicate to this court that the time has now arrived, and this
case presents an appropriate opportunity, to take a step toward applying
congressional philosophy to
Indian
treaty right
fishing in a way that will not be inconsistent with
Puyallup-I and
Puyallup-II and also will provide ample security for the interest and purposes of
conservation.
In all the circumstances shown by the evidence, including those briefly
sketched above, this court hereby finds and holds that any one of plaintiff
tribes is entitled to exercise its governmental powers by regulating the
treaty right
fishing of its members without any state
regulation thereof; PROVIDED, however, the
tribe has and maintains the qualifications and accepts and abides by the conditions
stated below. If, as to any plaintiff
tribe, any one of such qualifications and conditions is not determined by the court
in this decision on the evidence in
[**47] this case, establishment of the qualifications and conditions of each other
plaintiff
tribe shall be determined either to the satisfaction of both
Fisheries and
Game, or upon hearing by or under direction of the court. When the qualifications
and conditions of a
tribe have been fully established in the manner indicated, that
tribe shall be relieved of state
regulation except to the extent specified in the below stated conditions. Failure of a
tribe either to maintain its required qualifications or to abide by and adhere to
prescribed conditions, when established and not promptly corrected, shall
suspend self-regulation by such
tribe until such time as all required qualifications and conditions are fully
established.
To qualify for self-regulation of off
reservation
treaty right
fishing as above provided, a
tribe must establish to the satisfaction of either
Fisheries and
Game or the court, that the
tribe has each of the following qualifications and that the
tribe will accept and abide by each of the following conditions.
QUALIFICATIONS
The
tribe shall have:
(a) Competent and responsible leadership.
[*341] (b) Well organized
tribal government reasonably competent
[**48] to promulgate and apply
tribal off
reservation
fishing
regulations that, if strictly enforced, will not adversely affect
conservation.
(c)
Indian personnel trained for and competent to provide effective enforcement of all
tribal
fishing
regulations.
(d) Well qualified experts in
fishery science and management who are either on the
tribal staff or whose services are arranged for and readily available to the
tribe.
(e) An officially approved
tribal
membership roll.
(f) Provision for
tribal
membership certification, with individual identification by photograph, in a suitable
form that shall be carried on the person of each
tribal member when approaching,
fishing
in or leaving either on or off
reservation
waters.
CONDITIONS
The
tribe shall:
(a) Provide for full and complete
tribal
fishing
regulations which, before adoption, have been discussed in their proposed final form with
Fisheries and
Game, and include therein any state
regulation which has been established to the satisfaction of the
tribe, or upon hearing by or under direction of this court, to be reasonable and
necessary for
conservation.
(b) Permit monitoring of off
reservation
Indian
fishing
[**49] by
Fisheries and
Game to the extent reasonable and necessary for
conservation.
(c) Provide
fish
catch reports, as to both on and off
reservation
treaty right
fishing, when requested by
Fisheries or
Game for the purpose of establishing
escapement goals and other reasonable and necessary
conservation purposes.
All parties in this case agree that on
reservation
fishing is not subject to state
regulation and no issue to the contrary is presented in this case. Indeed, any contention
to the
contrary would be diametrically opposed to the
Indian self-government intent and philosophy of Congress. However, state
regulation of off
reservation
fishing to the extent reasonable and necessary for
conservation requires that
Fisheries and
Game must have all information essential to such limited
regulation. From the evidence in this case, the court hereby finds and holds that
recording the number of
fish taken in
treaty right
fishing, both on and off
reservation, is essential to reliable estimates of future run sizes which are necessary
for reasonably accurate calculation of
spawning
escapement requirements and for the allocation of harvestable
fish as provided in this decision.
The lack of
[**50] adequate, or any, approved identification of
treaty right
fishermen long has and now does seriously interfere with their
fishing and hampers enforcement of both
tribal and state
regulations reasonable and necessary for
conservation. Therefore, each of plaintiff
tribes, self-regulated or not, is hereby directed to provide as promptly as
practicable both (a) certification and
identification of its
tribal
fishermen as specified in para. (f) of the above stated Qualifications; and also (b)
fish
catch returns as specified in para. (c) of the above stated conditions.
The uncontradicted evidence shows that for a considerable time the Quinault and
Yakima
tribes have adopted and effectively enforced
tribal
fishing
regulations which in some material respects are more restrictive than the
regulations of
Fisheries and
Game. To a considerable extent those
tribes have consulted and cooperated with
Fisheries and
Game in matters pertaining to responsible
regulation of
Indian
fishing. In the Findings of Fact and Conclusions of Law on file herein the court has
found, held and hereby confirms that the evidence in this case clearly
establishes
[*342] that both the Quinault and Yakima
Tribes for
[**51] a considerable time have had, and now have, each of the above stated
Qualifications, other than (f), and have provided or permitted each of the
above stated Conditions, other than (c). The items excepted
can and the court believes will be promptly supplied by both
tribes; and when accomplished, the Quinault and Yakima
Tribes shall be entitled to exercise their
treaty
fishing rights without any state
regulation thereof, except as hereinabove provided.
The evidence indicates several other plaintiff
tribes have capacity for, and are not far from, achievement of the same status, which
potentially is within the capability of every plaintiff
tribe.
3. Although state police power permits state
regulation of the exercise of off
reservation
treaty
fishing rights, under all of the United States Supreme Court decisions cited or quoted
hereinabove there can be no doubt that it is
not within the province of state police power, however liberally defined, to deny
or
"qualify" rights which are made the supreme law of the land by the federal constitution.
Therefore, in each specific particular in which the state undertakes to
regulate the exercise of
treaty right
fishing, all
state officers responsible
[**52] therefor must understand that the power to do so must be interpreted narrowly
and sparingly applied, with constant recognition that
any
regulation will restrict the exercise of a right guaranteed by the United States
Constitution. Every
regulation of
treaty right
fishing must be strictly limited to specific measures which before becoming effective
have been established by the state, either to the satisfaction of all affected
tribes or upon hearing by or under direction of this court, to be reasonable and
necessary to prevent demonstrable harm to the actual
conservation of
fish.
To clearly identify state
treaty right
fishing
regulations and to make them more readily understood and usable by plaintiff
tribes and others interested therein such
regulations shall be published either separate and apart from other state
fishing
regulations or as a separate and plainly labeled part thereof readily distinguishable from
other
fishing
regulations.
4. However broadly the word may be
used and applied in the theory and practice of
fisheries science and management,
"conservation" as used in Supreme Court decisions and herein is limited to those measures
which are reasonable and necessary to
[**53] the perpetuation of a particular run or
species of
fish. In this context, as well as by dictionary definition,
"reasonable" means that a specifically identified
conservation measure is appropriate to its purpose; and
"necessary" means that such purpose in addition to being reasonable must be essential to
conservation.
5. The state having the burden of proof as above indicated, no
regulation applied to off
reservation
treaty
fishing can be valid or enforceable unless and until it has been shown reasonable and
necessary to
conservation as above defined. The arrest of, or seizure of property owned or in permitted
custody of, a
treaty right fisherman under a
regulation not previously established to be reasonable and necessary for
conservation, is unlawful and may be actionable as to any official or private person
authorizing or committing such unlawful arrest or seizure.
6. If alternative means and methods of reasonable and necessary
conservation
regulation are available, the state cannot lawfully restrict the exercise of off
reservation
treaty right
fishing, even if the only alternatives are restriction of
fishing by non-treaty
fishermen, either commercially or otherwise, to the full
[**54] extent necessary for
conservation of
fish.
7. In
Arizona the United States Supreme Court held that irrigation
water rights reserved by implication in an
Indian
treaty could only be limited in amount to the total reasonably required by the needs
of the
treaty
tribe
[*343] as determined from time to time indefinitely in the future. That holding
cannot be distinguished in principle or application from the
fishing rights specifically reserved by the plaintiff
tribes and recognized by the United States in the
treaties. Since
tribal on
reservation
treaty right
fishing is exclusive,
fish taken on
reservation shall not be included in any allocation of
fish between
treaty and non-treaty
fishermen. Therefore, the
amount or
quantity of any
species of
fish that may be taken off
reservation by
treaty right
fishing during a particular
fishing period can only be limited by either:
(a) The number of
fish required for
spawning
escapement and any other requirements established to be reasonable and necessary for
conservation, and
(b) The number of harvestable
fish non-treaty
fishermen may take at the
tribes'
"usual and
accustomed grounds and stations" while
fishing
"in
[**55] common with"
treaty right
fishermen.
As used above,
"harvestable" means the number of
fish remaining to be taken by any and all
fishermen, at usual and
accustomed grounds and stations, after deducting the number of
fish required for
spawning
escapement and
tribal needs.
Arizona was concerned with the amount of
water impliedly reserved for the use of the
treaty
tribe and it was held they were entitled to the full amount required to serve their
needs. In the present case a basic question is the amount of
fish the plaintiff
tribes may take in off
reservation
fishing under the express
reservation of
fishing rights recorded in their
treaties. The evidence shows beyond doubt that at
treaty time the opportunity to take
fish for personal subsistence and religious ceremonies (FF ## 3, 6) was the single
matter of utmost concern to all
treaty
tribes and their members. The extent of taking
fish by
tribal members for these purposes is now less than in former times but for a
substantial number of
tribal members at or near poverty level their need in these particulars is little, if
any, less than it was for their ancestors. For these reasons the court finds
that the taking of
fish for
ceremonial
[**56] and subsistence purposes has a special
treaty significance distinct from and superior to the taking of
fish for commercial purposes and therefore
fish taken to serve ceremonial and subsistence needs shall not be counted in the
share of
fish that
treaty right
fishermen have the opportunity to take. Such needs shall be limited to the number of
fish actually used for: (a) Traditional
tribal ceremonies; and (b) Personal subsistence consumption by
tribal members and their immediate families.
By dictionary definition and as intended and used in the
Indian
treaties and in this decision
"in common with" means
sharing equally the opportunity to take
fish n29 at
"usual and
accustomed grounds and stations"; therefore, non-treaty
fishermen shall have the opportunity to take up to 50% of the harvestable number of
fish that may be taken by all
fishermen at usual and
accustomed grounds and stations and
treaty right
fishermen shall have the opportunity to take
up to the same percentage of harvestable
fish, as stated above.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n29 The court has found and hereby affirms that
Indians fished for commercial purposes at and prior to
treaty times and have the right to do so now and in the future. If and when any
question is raised by any party pertaining to commercial
fishing by
Indians, it will be heard and determined by the court. (FF #7).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[**57]
While emphasizing the basic principle of sharing equally in the opportunity to
take
fish at usual and
accustomed grounds and stations, the court recognizes that innumerable difficulties will
arise in the application of this principle to the
fisheries resource. For the present time, at least, precise mathematical equality must
give way to more practical means of determining and allocating the harvestable
resource, with the methodology of allocation to be developed and modified in
light of current data and future experience. However, it is
[*344] necessary at the outset to establish the scope of the
anadromous
fish
resource which is subject to being
"shared equally." The amount of
fish of a particular
species, from which the harvestable portions allocable to
treaty right
fishermen and non-treaty right
fishermen are to be determined, is not merely the number of harvestable
fish of that
species which pass through the usual and
accustomed
fishing places of the various
treaty
tribes.
It is uncontroverted in the evidence that substantial numbers of
fish, many of which might otherwise reach the usual and
accustomed
fishing places of the
treaty
tribes, are caught in marine areas closely
[**58] adjacent to and within the state of Washington, primarily by non-treaty right
fishermen. [Ex. F-6, 7; PL-67(b)-(c); JX-2(a), pp. 125-135; Figs. 49-54, Tables 34-60].
These
catches reduce to a significant but not specifically determinable extent the number of
fish available for
harvest by
treaty right
fishermen. A considerable amount of this
harvest is beyond any jurisdiction or control of the State. Some of this
harvest is subject to limited state control because the landings are made in areas of
state jurisdiction. A considerable number of
fish taken within the territorial
waters of Washington are under the regulatory authority of the International Pacific
Salmon
Fisheries Commission, an international body established by
treaty between the United States and Canada. While the defendants cannot determine or
control the activities of that Commission, the Washington Department of
Fisheries does have some input into development of the
harvest program which is prescribed or permitted by that Commission, particularly as
it pertains to
harvest within Washington
waters. The Commission is essentially concerned with assuring adequate
spawning
escapement from runs subject to its jurisdiction
[**59] and equal division of the harvestable portion between the two countries. Its
control over times, places and manner of
harvest is designed to accomplish those results. [Ex. JX-2a,
§ 2.14, pp. 103-104; and the Commission's annual report for 1971]. Consequently,
while it must be recognized that these large
harvests by non-treaty
fishermen cannot be regulated with any certainty or precision by the state defendants,
it is incumbent upon such defendants to take all appropriate steps within their
actual abilities to assure as nearly as possible an equal sharing of the
opportunity for
treaty and non-treaty
fishermen to
harvest every
species of
fish to which the
treaty
tribes had access at their usual and
accustomed
fishing places at
treaty times. Some additional adjustments in the harvesting scheme under state
jurisdiction may be necessary to approach more nearly an equal allocation of
the opportunity to
harvest
fish at usual and
accustomed grounds and stations.
Therefore, this court finds and holds that the amount of
fish of each
species from which the harvestable portions shall be determined for the purposes of
allocation consistent with this
opinion shall be:
1. The total number of
[**60]
fish within the regulatory jurisdiction of the State of Washington which, absent
harvest en route, would be available for
harvest at the
treaty
tribes' usual and
accustomed
fishing places; plus
2. An additional equitable adjustment, determined from time to time as
circumstances may require, to compensate
treaty
tribes for the substantially disproportionate numbers of
fish, many of which might otherwise be available to
treaty right
fishermen for
harvest, caught by non-treaty
fishermen in marine areas closely adjacent to but beyond the territorial
waters of the State, or outside the jurisdiction of the State, although within
Washington
waters.
It is suggested in
Puyallup-II that a distinction between native and propagated
steelhead should be made in computing the allocation of
fish to off
reservation
treaty right and to non-treaty right
fishing. This appears to present many
difficulties and problems which must be considered and determined with all
deliberate speed, by
[*345] agreement or by judicial decision. Discharge of that responsibility appears to
be within the jurisdiction of this court by issues all parties have submitted
to this court in the Final Pretrial Order
[**61] in this case. However, under the
Puyallup-II mandate to the State Supreme Court it appears appropriate to this court that
the state courts hear and determine the matter referred to, at least in the
first instance.
8. Certain issues in this case are specified in the Final Pretrial Order which
involve
reef net
fisheries. The only parties in this case directly concerned with these issues are the
defendant
Reef Net Owners and the plaintiff Lummi
Tribe, although it may be other parties and non-parties have the same or similar
interests. In the Findings of Fact and Conclusions of Law filed herein, the
court has found and held: (a) that there is evidence which the court finds
reasonable,
credible and sufficient to establish that plaintiff Lummi
Tribe has
treaty
fishing rights in the
reef net
fishing areas involved; (b) that members of the Lummi
Tribe are entitled to and shall have, as a matter of
right, the opportunity to
fish with
reef nets in such areas; (c) that while non-treaty
fishermen when licensed by the State to
fish in
reef net areas have the
privilege of
fishing in those areas
"in common with" Lummi
Tribal members, they do not have the
right to do so.
The specific
[**62] number and location of stations in the
reef net areas at which Lummi
Tribal members shall have the right and opportunity to
fish and what, if any, conditions shall be applicable thereto, will be determined
by or under direction of this court upon hearing of those matters at the
earliest date reasonably convenient to counsel and the court.
9.
Sohappy is a 1969 decision by Judge Robert Belloni of the Oregon United States
District
Court on
Indian
treaty
fishing rights involving a number of law and fact issues identical or closely similar
to those presented in this case. Much of what was found and held in that
thoroughly researched, well reasoned and highly practicable decision is
directly applicable to issues to be determined in the present case. The
Sohappy decision was not appealed and therefore it is controlling as to all parties to
that case which include the United States and the Yakima
Tribe. The following quotations from that decision, changed by this court only as
bracketed, are hereby adopted and held by this court to be applicable to the
issues in the present case.
302 F. Supp. at page 907:
". . . [Before] [Washington] may regulate the taking and disposition
[**63] of
fish by
treaty
Indians at their usual and
accustomed
fishing places:
'(a) It must establish preliminary to
regulation that the specific proposed
regulation is both reasonable and necessary for the
conservation of the
fish resource. In order to be
necessary, such
regulations must be the least restrictive which can be imposed consistent with assuring
the necessary
escapement of
fish for
conservation purposes; the burden of establishing such facts is on the state.
'(b) Its regulatory agencies must deal with the matter of the
Indians'
treaty
fishing as a subject separate and distinct from that of
fishing by others. As one method of accomplishing
conservation objectives it may lawfully restrict or prohibit non-Indians
fishing at the
Indians' usual and
accustomed
fishing places without imposing similar restrictions on
treaty
Indians.
'(c) It must so regulate the taking of
fish that the
treaty
tribes and their members will be accorded an opportunity to take, at their usual and
accustomed
fishing places, by reasonable means feasible to them, . . .
fish [to the extent hereinabove specified.]
* * * *
At pages 908-909:
". . . state restriction on
treaty
[**64] referenced
fishing must be 'necessary for the
conservation of the
fish.'
[*346]
. . . It [the Supreme Court] was not endorsing any particular
state management program which is based not only upon that factor but also upon
allocation of
fish among particular user groups or
harvest areas, or classification of
fish to particular uses or modes of taking.
The state may regulate
fishing by non-Indians to achieve a wide variety of management or 'conservation' objectives. Its selection of
regulations to achieve these objectives is limited only by its own organic law and the
standards of reasonableness required by the Fourteenth Amendment. But when it
is regulating the federal right of
Indians to take
fish at their usual and
accustomed places it does not have the same latitude in prescribing the management
objectives and the regulatory means of achieving them. The state may not
qualify the federal right by subordinating it to some other state objective or
policy. It may use its police power only to the extent necessary to prevent the
exercise of that right in a manner that will
imperil the continued existence of the
fish resource. The measure of the legal propriety of a
regulation
[**65] concerning the time and manner of exercising this 'federal right' is,
therefore, 'distinct from the federal constitutional standard concerning the
scope of the police power of the State.' [citations] To prove necessity, the
state must show there is a need to limit the taking of
fish and that the particular
regulation sought to be imposed upon the exercise of the
treaty right is necessary to the accomplishment of the needed limitation. This
applies to
regulations restricting the type of
gear which
Indians may use as much as it does to restrictions on the time at which
Indians may
fish."
* * * *
At page 911:
"The Supreme Court has said that the right to
fish at all usual and
accustomed places may not be qualified by the state.
Puyallup Tribe et al. v. Department of Game, et al., supra. [citations] I interpret this to mean that the state cannot so manage the
fishery that little or no harvestable portion of the run remains to
reach the upper portions of the stream where the historic
Indian places are mostly located."
At page 911:
"There is no reason to believe that a ruling which grants the
Indians their full
treaty rights will affect the necessary
escapement of
[**66]
fish in the least. The only effect will be that some of the
fish now taken by sportsmen and commercial
fishermen must be shared with the
treaty
Indians, as our forefathers promised over a hundred years ago."
* * * *
At pages 911-912:
"In the case of
regulations affecting
Indian
treaty
fishing rights the protection of the
treaty right to take
fish at the
Indians' usual and
accustomed places must be an objective of the state's regulatory policy [at least]
coequal with the
conservation of
fish runs for other users. The restrictions on the exercise of the
treaty right must be expressed with such particularity that the
Indian can know in advance of his actions precisely the extent of the restriction
which the state has [shown] to be
necessary for
conservation. [citations]
This court cannot prescribe in advance all of the details of appropriate and
permissible
regulation of the
Indian
fishery, nor do the plaintiffs ask it to. As the Government itself acknowledges,
'proper
anadromous
fishery management in a changing environment is not susceptible of rigid
predetermination. * * * the variables that must be weighed in each given
instance make judicial review of state action,
[**67] through retention of continuing jurisdiction, more appropriate than
overly-detailed judicial predetermination.' The requirements of
fishery
regulation are such that many of the specific restrictions, particularly
[*347] as to timing and length of
seasons, cannot be made until the
fish are actually passing through the
fishing areas or shortly before such time. Continuing the jurisdiction of this court
in the present cases may, as a practical matter, be the only way of assuring
the parties an opportunity for timely and effective judicial review of such
restrictions should such review become necessary.
I also do not believe that this court should at this time and on this record
attempt to prescribe the specific procedures which the state must follow in
adopting
regulations applicable to the
Indian
fishery. The state must recognize that the federal right which the
Indians have is distinct from the
fishing rights of others over which the state has a broader latitude of regulatory
control and that the
tribal entities are interested parties to any
regulation affecting the
treaty
fishing right. They, as well as their members to whom the
regulations will be directly applicable, are entitled
[**68] to be heard on the subject and, consistent with the need for dealing with
emergency or changing situations on short notice, to be given appropriate
notice and opportunity to participate meaningfully in the rule-making process.
[and to seek prompt judicial review of
regulations assertedly invalid.]
This does not mean that
tribal consent is required for restrictions on the exercise of the
treaty rights."
* * * *
At page 912:
". . . the state's authority to prescribe restrictions within the limitations
imposed by the
treaties and directly binding upon the
Indians is not dependent upon assent of the
tribes or of the Secretary of the Interior. But certainly agreements with the
tribes or deference to
tribal preference or
regulation on specific aspects pertaining to the exercise of
treaty
fishing rights are means which the state [should] adopt in the exercise of its
jurisdiction over such
fishing rights. Both the state and the
tribes should be encouraged [and directed] to pursue such a cooperative approach . . ."
Thus far, this decision has been confined to discussion and ruling upon major
issues, mostly because of the great number of secondary, or comparatively less
[**69] important, issues of fact and law presented in this case. However, fact
findings and legal conclusions, with comment thereon in most instances, on all
of the secondary findings are included in the Findings of Fact and Conclusions
of Law filed herein. For the most part the secondary findings and conclusions
provide amplifying and implementing details for both major and secondary
rulings of the court. Every
issue, proposed finding of fact and conclusion of law, of whatever importance,
has been individually considered and determined in the Findings of Fact and
Conclusions of Law on file in this case, excepting only with a few
reservations that are stated and explained in each instance.
Subject to suggested limitations by some of the parties, all parties have urged
that the court reserve continuing jurisdiction of this case and have suggested
various ways in which such jurisdiction might be exercised. Quotations from
Sohappy, above quoted and adopted by this court, indicate some of the purposes for,
and practical importance of, continuing jurisdiction in this type of case. From
the beginning most, if not all, counsel in this case and the court have
anticipated that continuing jurisdiction
[**70] would be of great value to all parties in promptly putting the court's rulings
into effect and in providing readily available early hearing and determination
of factual and legal questions that may arise in interpreting and applying such
rulings.
Accordingly, the court does hereby reserve continuing jurisdiction of this case
without limitation at this time.
Most if not all parties have also suggested that the court should appoint a
master with technical
fisheries expertise to assist the court in helping the parties to reach agreed solutions
of problems
[*348] and questions when agreement thereon cannot be reached. Questions regarding
whether or not a master should be appointed, the suggested and perhaps other
purposes for appointment of a master, with or without technical
fisheries expertise; and, if appointed what the master's duties should be and the manner
of his selection, will be considered and determined at a hearing on the
earliest date after the entry of the judgment and decree reasonably convenient
to all counsel. At that hearing counsel are requested to present their views as
to whether or not the court should appoint an Advisory Committee on
Treaty Right
Fishing. The
[**71] members of such a committee should be knowledgeable and responsible citizens
inclined to and capable of objectively considering, determining and reporting
to the court the viewpoint of the interested public concerning
Indian
fishing as to: satisfactory solution of problems; means of expediting better
communication between
Indian and non-Indian officials and
fishermen and keeping interested citizens in this area more accurately informed on
matters pertaining to
Indian
fishing. Other topics to be considered at the conference may be suggested by counsel.
The remaining issues in this case reserved for separate pretrial and trial in
the future, however such issues may be determined, do not have direct or
indirect bearing upon any issue submitted and heretofore tried by this court.
Accordingly, this decision and the Declaratory Judgment and Decree based
thereon, upon entry in this case, shall become unreservedly final and
reviewable as provided by
28 U.S.C.A. 2201; subject only to determination of any motions that may be appropriately and
timely served and filed following entry of the Final Judgment and Decree. Each
such motion, if any, that may be filed shall be supported
n30 by a memorandum
[**72] of authorities to which counsel for adverse parties shall timely serve and
file a responsive memorandum of authorities, following which such motions, if
any, shall be promptly heard and determined by the court on the earliest date
reasonably convenient to counsel and the court.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n30 Local Rules WD Wash.Civil Rule 7.
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FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case came on regularly for trial on August 27, 1973, upon the basis of a
final pretrial order entered August 24, 1973, and the presentation of evidence
concluded September 18, 1973. Counsel for all parties appeared and presented
nearly 50 witnesses, whose testimony was reported in 4,600 pages of trial
transcript, more than 350 exhibits, pretrial briefs, final oral argument
12/9-10/73 and post trial briefs.
In addition to consideration of the above evidence and material by the court,
more than 500 proposed findings of fact and conclusions of law, submitted by
counsel and annotated to the record, have been checked to determine the
accuracy of every citation
[**73] made by any counsel alleged to support a proposed finding or conclusion. Many
of the proposed findings and conclusions were modified and many of the
supporting citations were corrected, and additional findings and conclusions
not proposed by any party were developed. The court has also read and examined,
individually and in relation to one another, every case cited by any party as
possible authority concerning any issue in this case, as well as other cases
not cited by the parties.
Based upon this exhaustive examination of the controlling law, the briefs and
oral argument of counsel and upon a preponderance of the evidence found
credible and inferences reasonably drawn therefrom, the court now makes the
following
Findings of Fact and Conclusions of Law:
TREATY STATUS
1. The United States has entered into
treaties with each of the following
Indian
tribes or bands (herein collectively
[*349] referred to as
"Plaintiff
tribes" and individually by the shorter name set out after each such
tribe), or with their predecessors in interest:
| Hoh
Indian Tribe | Treaty with the Quinaeilt, et al. |
| ("Hoh Tribe") | (Treaty of Olympia), July 1, 1855, |
| and January 25, 1856, ratified |
| March 8, 1859, and proclaimed |
| April 11, 1859, 12 Stat. 971. |
| Lummi Tribe of
Indians | Treaty of Point Elliott, January |
| ("Lummi Tribe") | 22, 1855, ratified March 8, 1859, |
| and proclaimed April 11, 1859, 12 |
| Stat. 927. |
| Makah
Indian Tribe | Treaty with the Makah (Treaty |
| of Neah Bay), January 31, 1855, |
| ratified March 8, 1859, and pro- |
| claimed April 18, 1859, 12 Stat. |
| 939. |
| Muckleshoot
Indian Tribe | Treaty of Point Elliott, supra, and |
| ("Muckleshoot Tribe") | also Treaty of Medicine Creek, |
| December 26, 1854, ratified March |
| 3, 1855, and proclaimed April 10, |
| 1855, 10 Stat. 1132. |
| Nisqually
Indian Community of | Treaty of Medicine Creek, supra. |
| the Nisqually Reservation |
| ("Nisqually Tribe") |
| Puyallup Tribe of the | Treaty of Medicine Creek, supra. |
| Puyallup Reservation |
| ("Puyallup Tribe") |
| Quileute Tribe of the | Treaty with the Quinaeilt, et al., |
| Quileute Reservation | supra. |
| ("Quileute Tribe") |
| Quinault Tribe of
Indians | Treaty with the Quinaeilt, et al., |
| ("Quinault Tribe") | supra. |
| Sauk-Suiattle
Indian Tribe | Treaty of Point Elliott, supra. |
| ("Sauk-Suiattle Tribe") |
| Skokomish
Indian Tribe | Treaty of Point No Point, Janu- |
| ("Skokomish Tribe") | ary 26, 1855, ratified March 8, |
| 1859, and proclaimed April 29, |
| 1859, 12 Stat. 933. |
| Squaxin Island Tribe of
Indians | Treaty of Medicine Creek, supra. |
| ("Squaxin Island Tribe") |
| Stillaguamish
Indian Tribe | Treaty of Point Elliott, supra. |
| ("Stillaguamish Tribe") |
| Upper Skagit River Tribe | Treaty of Point Elliott, supra. |
| ("Upper Skagit Tribe") |
| Confederated Tribes and Bands | Treaty with the Yakimas, June 9, |
| of the Yakima
Indian Nation | 1855, ratified March 8, 1859, and |
| ("Yakima Nation") | proclaimed April 18, 1859, 12 Stat. |
[**74]
[*350] Each of said
treaties contains a provision securing to the
Indians certain
off-reservation
fishing rights. The following provision from the
Treaty of Medicine Creek is typical of these
treaty provisions:
"The right of taking
fish, at all usual and
accustomed grounds and stations, is further secured to said
Indians, in common with all citizens of the Territory, and of erecting temporary houses
for the purpose of curing, * * *."
[FPTO
§§ 1, 3-1; see also references as to each Plaintiff
tribe under paragraphs as to such
tribes,
infra.]
PRE-TREATY ROLE OF
FISHING AMONG NORTHWEST
INDIANS
2. The anthropological reports and testimony of both Dr. Barbara Lane and Dr.
Carroll Riley have been thoroughly studied and considered by the court. In so
doing, the court has noted the nature, extent and duration of field work in the
case area and academic research. During trial constant observation was made of
the attitude and demeanor of both experts
while on the stand as witnesses, and the substance of their testimony has been
carefully evaluated. Allowance for the criticism by defendants that some of Dr.
Lane's conclusions are
"over formulated" has been
[**75] made in evaluating her testimony in every instance where the criticism might
be applicable. Based upon these and other factors, the court finds that in
specific facts, the reports of Dr. Barbara Lane, Exhibits USA-20 to 30 and
USA-53, have been exceptionally well researched and reported and are
established by a preponderance of the evidence. They are found to be
authoritative and reliable summaries of relevant aspects of
Indian life in the case area at and prior to the time of the
treaties, including the
treaty councils,
Indian groups covered by the
treaties, the purposes of the
treaties and the
Indians' understanding of
treaty provisions. In these particulars, nothing in Dr. Lane's report and testimony
was controverted by any credible evidence in the case. Dr. Lane's opinions,
inferences and conclusions based upon the information stated in detail and well
documented in her reports, appeared to the court to be well taken, sound and
reasonable. In summary, the court finds that where their testimony differs in
any significant particular, the testimony of Dr. Lane is more credible and
satisfactory than that of Dr. Riley and is accepted as such except as otherwise
specified.
3. In pre-treaty
[**76] times
Indian settlements were widely dispersed throughout Western Washington. There was
considerable local diversity in the availability and importance of specific
animal, plant and mineral resources used for food and artifacts. [FPTO
§ 3-32] But one common cultural characteristic among all of these
Indians was the almost universal and generally paramount dependence upon the products
of an aquatic economy, especially
anadromous
fish, to sustain the
Indian way of life. [Ex. G-17o, pp. 286-287; Exs.
USA-20 to 30 and 53; Exs. G-21 to 26] These
fish were vital to the
Indian diet, played an important role in their religious life, and constituted a
major element of their trade and economy. Throughout most of the area
salmon was a staple food and
steelhead were also taken, both providing essential proteins, fats, vitamins, and
minerals in the native diet. [FPTO
§§ 3-32, 3-33; Ex. USA-20; Ex. PL-40, p. 577; Ex. G-4, pp. 193-197] There was
considerable fluctuation in abundance and availability of
fish from year to year. Some causes of fluctuation were regular and predictable, as
in the case of runs of certain
species and races of
salmon. Other causes were erratic, such as flooding and
[**77] alteration in watercourses. [FPTO
§ 3-32]
4. The major food sources of the Northwest
Indians were the wild
fish, animal and vegetative resources of the area. It was, therefore, necessary for
the people to be on hand when the resources were ready for
harvest. These seasonal movements were reflected in native social organization. In the
winter, when weather conditions generally made travel and
fishing difficult, people
[*351] remained in their winter villages and lived more or less on stored food. Fresh
fish and other foods were harvested during the winter but that
season was devoted primarily to ceremonies and manufacturing tasks. During this time
people congregated into the largest assemblages and occupied long, multifamily
houses. Throughout the rest of the year individual families dispersed in
various directions to join families from other winter villages in
fishing, claim digging, hunting, gathering roots and berries, and agricultural
pursuits. People moved about to resource areas where they had use patterns
based on kinship or marriage. Families did not necessarily
follow the same particular pattern of seasonal movements every year. [FPTO
§ 3-32; Ex. USA-20; see also
[**78] Exs. USA-21 to 30 and 53; Exs. G-17a-o; Exs. G-21 to 26; Exs. PL-23 and PL-24; Ex. G-4, pp. 193-197]
5. At the time of the
treaties and prior thereto, utilization of the rich
fishery resource required an intimate knowledge of local environments and the locally
available
species as well as the development of a variety of specialized techniques for taking
fish. [FPTO
§ 3-32; Ex. USA-20; Ex. JX-2a,
§ 3.1, pp. 108-114, Figs. 44-47, 280-283; Ex. USA-31e, pp. 17-26; Ex. PL-88a-d;
Ex. L-7] The latter involved
both group and individual activity and equipment. [FPTO
§ 3-76] Adequate
Indian food preservation techniques had been developed by the time of the
treaties and
fish were able to be stored for use throughout the year and transported over great
distances. [FPTO
§ 3-32; Ex. USA-20, p. 1; Ex. MLQ-1, p. 1] However, the
Indians'
harvest of
fish was subject to the vagaries of nature which occasionally imperiled their food
supply and caused near starvation. The amounts of
fish that could be harvested were particularly affected by run-size fluctuations
caused by natural conditions and
water conditions occurring at the time the
fish were running, e.g., flooding, which limited the
[**79] effectiveness of the
Indian
fishing
gear. [Tr. 2006,
l. 17 to 2012,
l. 24; Ex. PL-40, p. 577; Ex. F-39; FPTO
§ 3-32;
Ex. USA-20, p. 5]
6. The first-salmon ceremony, which with local differences in detail was
general through most of the area, was essentially a religious rite to ensure
the continued return of
salmon. The symbolic acts, attitudes of respect and reverence, and concern for the
salmon reflected a ritualistic conception of the interdependence and relatedness of
all living things which was a dominant feature of native
Indian world view. Religious attitudes and rites insured that
salmon were never wantonly wasted and that
water pollution was not permitted during the
salmon
season. [FPTO
§ 3-33; Ex. USA-20, p. 9]
7. At the time of the
treaties, trade was carried on among the
Indian groups throughout a wide geographic area.
Fish was a basic element of the trade. There is some evidence that the volume of
this intra-tribal trade was substantial, but it is not possible to compare it
with the
volume of present day commercial trading in
salmon. Such trading was, however, important to the
Indians at the time of the
treaties. [Ex. USA-20, pp. 2-10; Tr. 1778,
l.
[**80] 6 to 1784,
l. 13] In addition to potlatching, which is a system of exchange between
communities in a social context often typified by competitive gifting, there
was a considerable amount of outright sale and trade beyond the local community
and sometimes over great distances. [Ex. USA-20, pp. 2-10] In the decade
immediately preceding the
treaties,
Indian
fishing increased in order to accommodate increased demand for local non-Indian consumption and for export, as well as to provide money for purchase of
introduced commodities and to obtain substitute non-Indian goods for native products which were no longer available because of the non-Indian movement into the area. [Ex. USA-20, p. 13] Those involved in negotiating the
treaties recognized the contribution that
Indian
fishermen made to the territorial economy because
Indians caught most of the
[*352] non-Indians'
fish for them, plus clams and oysters. [Ex. PL-11; Ex. USA-20, p. 15]
8. At the time of the
treaties, non-Indian commercial
fishing enterprises were rudimentary and largely unsuccessful. In the 1840's and 50's,
salmon was packed and shipped from the Columbia
River and the case area to such distant places as
[**81] New York, San Francisco, the Hawaiian Islands, South America and China, but
inadequate preservation techniques and slow transportation facilities caused
the
salmon to reach the markets in unsatisfactory condition, and it obtained a bad
reputation among dealers. [Ex. PL-50, p. 310; Ex. MLQ-1, p.
1] There was no statistically measurable commercial
fishery at the time the
treaties were negotiated. [Ex. MLQ-1, p. 15] At the time of the
treaties the commercial
fisheries in the case area posed no threat to the abundance of the
fish resources. [Tr. 2006,
l. 12-16; Tr. 2382,
l. 10-18; Exs. PL-7 and PL-8] The non-Indian commercial
fishing industry did not fully develop in the case area until after the invention and
perfection of the canning process. The first
salmon cannery in Puget Sound began in 1877 with a small operation at Mukilteo.
Large-scale development of the commercial
fisheries did not commence in Puget Sound until the mid-1890's. [Ex. MLQ-1, pp. 1-3] The
large-scale development of the commercial
fishing industry in the last
decades of the Nineteenth Century brought about the need for
regulation of
fish
harvests. [Ex. JX-2a,
§ 2.3.1, pp. 60-62]
9. There was a
[**82] sharp decline in
Indian population in the case area in the period after extensive contact with
Europeans and Americans which occurred around 1780. It has been estimated that
Indian populations in the Puget Sound region declined by approximately 50% between
1780 and 1840, but pre-treaty censuses were often incomplete and inaccurate.
The Gibbs-Stevens census of 1854 shows a total of 7,559
Indians for all of Western Washington. A decline in population continued during the
decades following the signing of the
treaties, due in large part to diseases introduced by non-Indians. [Ex. D-1, pp. 9-12; Ex. G-4, pp.
181-184; Ex. MLQ-1, pp. 14, 16] The non-Indian population at
treaty times has been estimated at approximately 2,000 people in Western Washington.
[Tr. 2475,
l. 7 to 2476,
l. 8] Because of the great abundance of
fish resources and these limited populations, there was no need to regulate the
taking of
fish by either
Indians or non-Indians at
treaty times. [Tr. 1849,
l. 18-22; Tr. 2381,
l. 25 to 2382,
l. 18]
10. The Northwest
Indians developed and utilized a wide variety of
fishing methods which enabled them to take
fish from nearly every type of location at
[**83] which
fish were present. They harvested
fish from the high seas, inland salt
waters,
rivers and lakes. They took
fish at
river mouths as well as at accessible points or stretches along the
rivers all the way to the headwaters. Some locations were more heavily
utilized than others. Like all
fishermen, they shifted to those locales which seemed most productive at any given time.
[Exs. USA-20 to 30 and 53]
Fishing methods varied according to the locale but generally included trapping, dip
netting, gill netting,
reef netting, trolling, long-lining, jigging, set-lining, impounding, gaffing,
spearing, harpooning and raking. [FPTO
§ 3-33] Control and use patterns of
fishing
gear varied according to the nature of the
gear. Certain types required cooperative effort in their construction and/or
handling. Weirs were classed as cooperative property but the component
fishing stations on the weir were individually controlled. [FPTO
§ 3-76; Ex. USA-26, pp. 13-14]
11. Aboriginal
Indian
fishing was not limited to any
species. They took whatever
species were available at the particular
season and location. Many varieties,
including
salmon and
steelhead, halibut, cod, flounder, ling cod, rockfish,
[**84] herring, smelt, eulachon, dogfish and trout, were taken and were important to
varying degrees as food and
[*353] as items of trade. [FPTO
§ 3-33; Ex. G-4, pp. 194-195]
12.
Indian
fishing practices at
treaty times were largely unrestricted in geographic scope. Generally, individual
Indians had primary use rights in the territory where they resided and permissive use
rights in the natal territory (if this was different) or in territories where
they had consanguineal kin. Subject to such individual claims, most groups
claimed autumn
fishing use rights in the
waters near to their winter villages. Spring and summer
fishing areas were often more distantly located and often were shared with other
groups from other villages. [FPTO
§ 3-34]
13. Each of the Plaintiff
tribes had usual and
accustomed
fishing places within the case area. Although there are extensive records and oral
history from which many specific
fishing locations can be pinpointed, it would be impossible to compile a complete
inventory of any
tribe's usual and
accustomed grounds and stations. [FPTO
§ 3-34; Ex. USA-20, p. 21; Ex USA-52, p. 4,
l. 7 to p. 5,
l. 29] Among the reasons for this are the following:
[**85] 1)
Indian
fisheries existed at all feasible places along a given drainage system.
Fishing stations which were the
site of weirs or permanent villages are more easily documented than riffles where
fish were speared; 2)
Indian
fishermen shifted to those locales which seemed most productive at any given time
depending upon such factors as changes in
river flow, turbidity or
water course; 3) some important recorded
fishing
sites are no
longer extant because of subsequent man-made alterations in watersheds and
water systems; and, 4) use of some
sites has been discontinued because appropriate
Indian
gear for those
sites has been outlawed or because competing uses and users have made utilization of
the
sites by
Indian
fishermen unfeasible. [Ex. USA-20, pp. 21-23; Ex. USA-27b, pp. 1-3] Documentation as to
which
Indians used specific
fishing
sites is incomplete. George Gibbs noted that:
"As regards the
fisheries, they are held in common, and no
tribe pretends to claim from another, or from individuals, seignora |