"again, throw your hands up and run away. It'll be easier for you..."
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.
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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.
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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.
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n3 See Final Pretrial Order paragraph 1.
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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
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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.
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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.
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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.
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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
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n6 Exhibit (Ex) USA-20, pp 24-29; Finding of Fact (FF) #2.
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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
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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.
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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
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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.
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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.
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n11 Id. at 381-382, 25 S. Ct. at 664.
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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.
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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.
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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
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n13 Seufert and see F.F. 10 and 13.
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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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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.
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n21 Webster's Third New International Dictionary of the English Language, 1961 Ed. (p. 1858)
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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.
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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.
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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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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. Ther
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