Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 66054-9
Title of Case: State of Washington
v.
Donald Ray Buchanan
File Date: 06/17/1999
Oral Argument Date: 11/18/1998
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
Yakima County;
95-1-00124-1
Honorable Heather Van Nuys, Judge.
JUSTICES
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Authored by Richard P. Guy
Concurring: Barbara Durham
Charles Z. Smith
Charles W. Johnson
Barbara A. Madsen
Gerry L. Alexander
Philip A. Talmadge
Richard B. Sanders
Visiting Judge
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Jeffrey C. Sullivan
Prosecuting Attorney
Pros Atty Offc Rm 329
128 N 2nd St
Yakima, WA 98901-2614
Kenneth L. Ramm Jr.
Deputy Prosecutor
Yakima County Courthouse
128 N 2nd St Rm 329
Yakima, WA 98901-2631
Lauri M. Boyd
Yakima Co Crths-Appel Div
128 N 2nd St Ste 211
Yakima, WA 98901-2631
Counsel for Respondent(s)
David S. Vogel
Law Offices of David S. Vogel
520 Pike St #1505
Seattle, WA 98101-4044
Amicus Curiae on behalf of Wa State Departmentof Fish & Wildli
Robert K. Costello
Assistant Attorney General
1125 Washington St SE
PO Box 40100
Olympia, WA 98504-0100
Amicus Curiae on behalf of Modern Firearm Hunters of Washington
Joseph L. Coniff Jr.
Attorney At Law
2120 State Ave NE Ste 201
Olympia, WA 98506-4762
Amicus Curiae on behalf of Ralph W Professo Johnson
Ralph W. Johnson
Univ of Wa Law School
1100 NE Campus Pky #jb20
Seattle, WA 98105-6605
Amicus Curiae on behalf of Squaxin Island Tribe
Kevin R. Lyon
Attorney At Law
112 4th Ave E Ste 200
Olympia, WA 98501-1103
Ronald J. Whitener
Squaxin Island Legal Dept
112 E 4th Ave Ste 200
Olympia, WA 98501
Amicus Curiae on behalf of Tulalip Tribes
Mason D. Morisset
Morisset Schlosser Ayer...
1115 Norton Bulding
801 Second Avenue
Seattle, WA 98104-1509
Amicus Curiae on behalf of Nisqually Indian Tribe
Bill Tobin
Attorney At Law
P.O. Box 1425
Vashon, WA 98070-1425
Amicus Curiae on behalf of Sauk-Suiattle Tribe
Allen H. Sanders
907 37th Ave
Seattle, WA 98122-5226
Phillip E. Katzen
Columbia Legal Services
101 Yesler, Suite 301
Seattle, WA 98104
Amicus Curiae on behalf of Skokomish Tribe
Kathryn J. Nelson
Eisenhower Carlson Newlands Reha Henriot & Quinn
1200 1st Interstate Plaza
1201 Pacific Ave
Tacoma, WA 98402
Amicus Curiae on behalf of Puyallup Tribe
Debra S. O'Gara
Puyallup Indian Tribe
2002 E 28th St
Tacoma, WA 98404-6110
Amicus Curiae on behalf of Upper Skagit Tribe
Harold Chesnin
Mathews Garlington-Mathews & Chesnin
219 S Washington Street
Seattle, WA 98104-2600
Amicus Curiae on behalf of Lummi Tribe
Daniel A. Raas
Raas Johnsen & Stuen
1503 E St.
Bellingham, WA 98225-3007
Amicus Curiae on behalf of Swinomish Indian Tribal Community
Alix Foster
Office of Tribal Atty
PO Box 817
La Conner, WA 98257-0817
Allan E. Olson
P.O. Box 817
La Conner, WA 98257
Amicus Curiae on behalf of Suquamish Tribe
John C. Sledd
8002 Illahee Rd NE
Bremerton, WA 98311
Amicus Curiae on behalf of Bands of Yakama Indian Nation
Elizabeth F. Nason
Yakima Indian Nation
P.O. Box 151
Toppenish, WA 98948
Amicus Curiae on behalf of Nooksack Tribe
Jeffrey J. Bode
Attorney At Law
P.O. Box 6092
Bellingham, WA 98227
Amicus Curiae on behalf of Muckleshoot Indian Tribe
Alan C. Stay
Muckleshoot Indian Tribe
39015 - 172nd Ave SE
Auburn, WA 98092
Robert L. Otsea Jr.
1527 Lk Washington Blvd S
Seattle, WA 98144
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Appellant, ) No. 66054-9
)
v. )
) EN BANC
DONALD RAY BUCHANAN, )
)
Respondent. ) Filed June 17, 1999.
GUY, C.J. This is a criminal prosecution for illegal hunting of elk in the
State-owned Oak Creek Wildlife Area. The defendant, a member of the
Nooksack Indian Tribe, claims he has a treaty right to hunt elk in the Oak
Creek Area, and that this right may not be restricted by state hunting
regulations. The issues presented are (1) whether the geographic scope of
the tribe's treaty right to hunt on open and unclaimed lands includes the
Oak Creek Wildlife Area, (2) whether the Oak Creek Wildlife Area is open
and unclaimed land, and (3)
whether the tribe's treaty right to hunt outside the reservation was
abrogated by Washington's admission to the Union "on equal footing" with
the original states.
We reverse the dismissal of the criminal action and remand for trial. We
hold that, on remand, the defendant may raise a treaty right to hunt as a
defense to the criminal charges and may offer evidence in support of his
position that the Oak Creek Wildlife Area is within the aboriginal hunting
grounds of the Nooksack Tribe. We also hold that under the facts presented
in this case, the Oak Creek Wildlife Area is "open and unclaimed" land
within the meaning of the Nooksack's treaty. We decline, in this case, to
reconsider prior case law on whether the equal footing doctrine applies to
impliedly abrogate Indian treaty rights in Washington.
FACTS
On January 6, 1995, defendant Donald Buchanan was stopped by
Department of Fish and Wildlife enforcement officers while Buchanan was
hunting in the Oak Creek Wildlife Area, land which is owned and managed by
the State of Washington. The defendant was in possession of two recently
killed five-point, branch-antlered bull elks. At the time he was stopped,
the defendant's Washington state hunting license had been revoked, and the
Washington elk hunting season was closed.
The Oak Creek Wildlife Area, which is near Yakima, is open to the
public at specified times each year for hunting, fishing and recreational
purposes. During the fall and winter of 1994-95, state regulations
permitted elk hunting in the Oak Creek Wildlife Area only from November 5
through 13, 1994. The number of branch-antlered elk that could be killed
also was regulated during the hunting season, and only young "spike bulls"
could be killed without a special permit. The purposes of the restrictions
on elk hunting in the Oak Creek Wildlife Area are to maintain and manage
the existing elk population. However, there is not an immediate threat to
elk, as a species, in the Oak Creek Wildlife Area.
Defendant Buchanan is a resident of Kent, Washington, and a member of
the Nooksack Indian Tribe. At the time he was stopped by Wildlife
enforcement officers, he possessed both a Nooksack Tribe identification
card and hunting tags issued by the Tribe. The Nooksack Tribe's
reservation is located in Whatcom County, near Deming. The lands ceded to
the United States by the Nooksack Tribe under the provisions of the Treaty
of Point Elliott,1 which is the treaty involved here, are bordered on the
east by the summit of the Cascade range. The Oak Creek Wildlife Area is
east of the territory ceded to the United States by the Nooksacks.
Defendant Buchanan was charged with two felony counts of possessing
big game during a closed season, former RCW 77.16.020(1)(E), former RCW
77.21.010(1) (second or subsequent violation), and with one misdemeanor
count of hunting while license is revoked. Former RCW 77.21.060(2).2
Defendant Buchanan moved to dismiss the charges on the ground that
State hunting regulations do not apply to hunters, like Buchanan, who are
members of Indian tribes that have a treaty right to hunt on open and
unclaimed lands. He claims the only regulations that govern his hunting on
open and unclaimed lands are those of the Nooksack Indian Tribe.
The trial court granted the motion to dismiss the charges, ruling:
(1) the language of the Treaty of Point Elliott does not restrict hunting
to open and unclaimed lands within the area ceded by the Indians to the
United States, but instead gives tribal members a right to hunt anywhere in
the "Territory of Washington"; (2) the term "open and unclaimed lands"
includes public lands, such as the Oak Creek Wildlife Area, which are put
to uses compatible with an Indian hunting privilege; and (3) although
Indian hunting privileges may be limited if necessary for conservation, the
State, in this case, failed to
demonstrate that application of State hunting regulations to treaty tribe
hunters is necessary for conservation.
On appeal, the State challenged the trial court's conclusions and,
additionally, argued that the Treaty of Point Elliott was abrogated by
Congress when Washington was admitted to the Union on equal footing with
the original states. The Court of Appeals affirmed and declined to
consider the equal footing argument, as that issue was not presented to the
trial court and was not asserted to be of constitutional magnitude. State
v. Buchanan, 87 Wn. App. 189, 196, 941 P.2d 683 (1997), review granted, 134
Wn.2d 1012 (1998). This court granted the State's petition for review.
Several treaty tribes, including the Nooksack Tribe, have filed an amicus
brief providing an overview of tribal management of off-reservation hunting
by tribal members, a description of cooperative agreements governing
wildlife management between tribes and between various tribes and the
State, and further setting forth the tribes' position on the meaning of
"open and unclaimed" lands.3 Professor Ralph Johnson of the University of
Washington School of Law has filed an amicus brief on the proper
interpretation of the treaty language "open and unclaimed" lands. An
amicus brief has been filed by the Department of Fish and Wildlife on the
issues of the geographical scope of the treaty right involved and on the
designation of the Oak Creek Wildlife Area as open and unclaimed lands
during the winter months. Modern Firearm Hunters of Washington has filed
an amicus brief in support of the State's equal footing argument.
Prior to oral argument in this court, the State filed a motion
captioned, "Request for Judicial Notice or to Supplement the Record Under
RAP 9.11." In its motion the State argues that defendant Buchanan should
not be permitted to raise the defense that he has a treaty right to hunt
because the Nooksack Tribe was not a signatory to the Treaty of Point
Elliott. Defendant Buchanan responded to the motion and, additionally,
moved for sanctions against the State, arguing the motion was frivolous and
made for purposes of delay. Both motions were passed to the merits.
ISSUES
1. What is the geographic scope of the Nooksack Indian Tribe's treaty
hunting right?
2. Is the State-owned Oak Creek Wildlife Area "open and unclaimed
lands" within the meaning of the Treaty of Point Elliott?
3. Were those provisions of the Treaty of Point Elliott which
conflict with the State's right to regulate off-reservation hunting
abrogated by Congress when Washington was admitted to the Union upon "equal
footing" with the original states?
DISCUSSION
We begin by denying both the State's motion for judicial notice or to
supplement the record and the defendant's motion for sanctions.
In its motion, the State first argues that this court should take judicial
notice that the court lacks "subject matter jurisdiction" over defendant
Buchanan's defense because the Nooksack Tribe was not a signatory to the
Treaty of Point Elliott and Buchanan, therefore, has no treaty hunting
rights.
The State's motion raises a new issue that is, whether defendant
Buchanan failed to prove a necessary element (the existence of a treaty) of
his defense. The court generally will not consider issues which are not
set forth in the petition for review, RAP 13.7(b), nor arguments raised for
the first time on appeal. See, e.g., Hansen v. Friend, 118 Wn.2d 476, 485,
824 P.2d 483 (1992). However, this rule does not apply when the issue
raised affects the right to maintain an action. Jones v. Stebbins, 122
Wn.2d 471, 479, 860 P.2d 1009 (1993). In this case, the State claims that
defendant Buchanan does not have a right to maintain his defense and,
therefore, the court should take judicial notice that it is without
jurisdiction to consider it.
The issue raised by the State does not present a jurisdictional
question. Jurisdiction is the power of the court to hear and determine the
class of action to which a case belongs. State v. Werner, 129 Wn.2d 485,
493, 918 P.2d 916 (1996); Bour v. Johnson, 80 Wn. App. 643, 647, 910 P.2d
548 (1996). This is a criminal felony action brought by the State. The
trial court had authority to determine the legal and factual issues
involved. RCW 2.08.010; Werner, 129 Wn.2d at 493. This court has the
power to determine the appeal. RCW 2.04.010.
Alternatively, the State asks to supplement the record with documents
showing that the Nooksack Indian Tribe has previously taken the position
that it was not a party to the treaty. This issue was resolved in 1978 in
an action in which the State of Washington was a defendant, and in which
the trial court ruled that the Nooksack Indian Tribe was included in the
Treaty of Point Elliott. United States v. Washington, 459 F. Supp. 1020,
1040-41 (W.D. Wash. 1978) (posttrial substantive orders following the
initial Boldt decision4), aff'd, 645 F.2d 749 (9th Cir. 1981) (the appeal
does not challenge the trial court's ruling relating to the Nooksack's
status as a treaty tribe).
The State argues that this court need not consider the federal court
decision because it is "a lower federal court case which is non-binding
precedent on this court." Request for Judicial Notice at 6. However, the
State was a party to the federal court case and is bound by its ruling.
Puget Sound Gillnetters Ass'n v. Moos, 92 Wn.2d 939, 953, 603 P.2d 819
(1979) (all parties, and all those who are in privity with parties, must
comply with the federal court orders entered in United States v.
Washington). See also Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d
255, 262, 956 P.2d 312 (1998) (the doctrine of collateral estoppel prevents
relitigation of an issue, in state court, after the party against whom the
doctrine is applied has had a full and fair opportunity to litigate his or
her case in federal court). The State claims the federal trial court's
decision on the issue is erroneous, but it did not appeal the trial court's
findings and conclusion with respect to the Nooksack Tribe. Recourse from
an erroneous federal court decision is through the federal system. Puget
Sound Gillnetters, 92 Wn.2d at 952. Accordingly, we deny the motion to
supplement.
Although we deny the State's motion, we decline to impose sanctions
against it. We are satisfied that the motion was filed in good faith.
We turn now to the substantive issues in this appeal.
Defendant Buchanan's defense to the criminal charges brought against
him is that he is not subject to State hunting laws because he has a treaty
right to hunt on any open and unclaimed lands in "Washington Territory,"
and that this treaty right is superior to the right of the State to
regulate hunting.
The State makes essentially three arguments. First, it argues that
any treaty hunting right that exists in the Nooksack Tribe should be
interpreted to permit hunting only on open and unclaimed land within the
area ceded to the United States by the tribe, or upon land which the tribe
has traditionally hunted. Second, the State argues that even if the treaty
affords a right to hunt outside the ceded area, the Oak Creek Wildlife Area
is not "open and unclaimed" land. Finally, it urges this court to hold
that no treaty right to hunt or fish in violation of State regulations
survived Washington's admission to the Union on "equal footing" with the
original states.
Our initial inquiry is to determine the geographic scope of the
Nooksack Tribe's treaty hunting right.
In 1854 and 1855 Isaac Stevens, who was the first Governor and
Superintendent of Indian Affairs for Washington Territory, negotiated
several treaties between the United States and the various tribes and bands
of Indians who lived in the Territory.5 See generally United States v.
Washington, 384 F. Supp. 312, 353-57 (W.D. Wash. 1974); Seufert Bros. Co.
v. United States, 249 U.S. 194, 39 S. Ct. 203, 63 L. Ed. 555 (1919).
At the time the treaties were negotiated, approximately three-fourths
of Western Washington's 10,000 or so inhabitants were Indians. Washington
v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S.
658, 664, 99 S. Ct. 3055, 61 L. Ed. 2d 823 (1979) (hereafter Fishing
Vessel). The natural resources appeared to the parties to be
inexhaustible. Fishing Vessel, 443 U.S. at 669.
In the treaties, the Indians relinquished their interest in most of
the Territory in exchange for monetary payments. Additionally, certain
relatively small parcels of land were reserved for the exclusive use of
particular tribes or bands, and the Indians were afforded other guarantees,
such as certain rights of fishing and hunting. Fishing Vessel, 443 U.S. at
662.
The Treaty of Point Elliott was made in January 1855 and ratified
March 8, 1859. As noted above, the Nooksack Indian Tribe was judicially
determined to be a party to the treaty in United States v. Washington, 459
F. Supp. 1020. The first article of the treaty includes a description of
lands ceded to the United States by the Indians. The treaty provides, in
article 1, that the "said tribes and bands of Indians hereby cede,
relinquish, and convey to the United States all their right, title, and
interest in and to the lands and country occupied by them, bounded and
described as follows: Commencing at {the inlets and bays of western
Washington Territory} to the summit of the Cascade range of mountains."
Treaty of Point Elliott at 927.
Article 5 of the treaty provides:
The right of taking fish at 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,
together with the privilege of hunting and gathering roots and berries on
open and unclaimed lands. Provided, however, that they shall not take
shell-fish from any beds staked or cultivated by citizens.
Treaty of Point Elliott at 928.
This paragraph was substantially the same in all of the Stevens
Treaties,6 and its language has been the subject of extensive litigation in
both state and federal court during much of the last century. See, e.g.,
United States v. Winans, 198 U.S. 371, 25 S. Ct. 662, 49 L. Ed 1089 (1905);
Seufert Bros., 249 U.S. 194; Tulee v. Washington, 315 U.S. 681, 62 S. Ct.
862, 86 L. Ed. 1115 (1942); State v. Towessnute, 89 Wash. 478, 154 P. 805
(1916); State v. Wallahee, 143 Wash. 117, 255 P. 94 (1927); State v. McCoy,
63 Wn.2d 421, 387 P.2d 942 (1963); State v. Chambers, 81 Wn.2d 929, 506
P.2d 311 (1973); State v. Petit, 88 Wn.2d 267, 558 P.2d 796 (1977); State
v. Miller, 102 Wn.2d 678, 689 P.2d 81 (1984); Atwood v. Shanks, 91 Wn. App.
404, 958 P.2d 332 (1998); United States v. Alaska Packers' Ass'n, 79 F. 152
(N.D. Wash. 1897); United States v. Hicks, 587 F. Supp. 1162 (W.D. Wash.
1984); United States v. Washington, 384 F. Supp. 312; United States v.
Washington, 157 F.3d 630 (9th Cir. 1998); State v. Arthur, 74 Idaho 251,
261 P.2d 135 (1953). See also Wilkinson, supra, at 447-48; Dana Johnson,
Native American Treaty Rights to Scarce Natural Resources, 43 U.C.L.A. L.
Rev. 547, 552 (1995); Bradley I. Nye, Where Do the Buffalo Roam?
Determining the Scope of American Indian Off-Reservation Hunting Rights in
the Pacific Northwest, 67 Wash. L. Rev. 175 (1992); Laurie Reynolds, Indian
Hunting and Fishing Rights: The Role of Tribal Sovereignty and Preemption,
62 N.C. L. Rev. 743 (1984).
These authorities and others provide a framework for judicial
examination of the treaty language involved here.
Like any treaty between the United States and another sovereign
nation, a treaty with Indians is the supreme law of the land and is binding
on the State until Congress limits or abrogates the treaty. U.S. Const.
art. VI; Antoine v. Washington, 420 U.S. 194, 201, 95 S. Ct. 944, 43 L. Ed.
2d 129 (1975); State v. McCormack, 117 Wn.2d 141, 143, 812 P.2d 483 (1991).
A treaty, including one between the United States and an Indian tribe,
is essentially a contract between two sovereigns. Fishing Vessel, 443 U.S.
at 675; State v. Courville, 36 Wn. App. 615, 619, 676 P.2d 1011 (1983).
When the signatory nations are not at war and neither is the vanquished, it
is reasonable to assume the parties bargained at arm's length. Fishing
Vessel, 443 U.S. 675. In discussing the negotiations involved in another
Stevens Treaty, that with the Nez Perce, Professor Wilkinson states:
{T}he stereotype of Indian leaders at treaty talks as being passive and
overmatched intellectually is wrong.
The negotiators for the Nez Perce, and for the other tribes as well,
had a complete understanding of the situation. The white people wanted
their land, and had the population and technology to take it. The tribes,
on the other hand, had considerable leverage: in time they would lose a
military campaign, but they could exact great costs in terms of human life
and monetary expenditures to fight a war on the fragile, far edge of
American territory.
The calculus was about power, and the tribes could make the
calculations as well as the white people. The tribal negotiators were
sophisticated and they used every technique and device available to them.
. . . They made their arguments precisely and ably.
Wilkinson, supra, at 438 (footnotes omitted).
The goal of treaty interpretation is the same as the goal of contract
interpretation to determine the intent of the parties. Fishing Vessel, 443
U.S. 675; United States v. Washington, 157 F.3d at 642. The analysis of
the parties' intention begins with the language of the treaty and the
context in which the written words are used. United States v. Washington,
157 F.3d at 642. In interpreting a treaty between the United States and an
Indian tribe, the treaty must "'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.'" Fishing Vessel,
443 U.S. 676 (quoting Jones v. Meehan, 175 U.S. 1, 11, 20 S. Ct. 1, 5, 44
L. Ed. 49 (1899)); Miller, 102 Wn.2d at 683.
Where there is ambiguity in the language of a treaty, it must not be
construed to the prejudice of the Indians. Minnesota v. Mille Lacs Band of
Chippewa Indians, No. 97-1337, 1999 WL 155689 (U.S. Mar. 24, 1999);
Antoine, 420 U.S. at 199; Miller, 102 Wn.2d at 683. However, courts may
not ignore treaty language that, viewed in its historical context and given
a fair appraisal, clearly runs counter to the tribe's claims. Oregon Dep't
of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774, 105 S. Ct.
3420, 87 L. Ed. 2d 542 (1985); Department of Ecology v. Yakima Reservation
Irrigation Dist., 121 Wn.2d 257, 277, 850 P.2d 1306 (1993). Additionally,
treaties must be construed liberally in favor of Indians. Ecology, 121
Wn.2d at 277; State v. Price, 87 Wn. App. 424, 429, 942 P.2d 377 (1997).
A key principle of treaty interpretation is known as the "reservation
of rights doctrine." First announced in United States v. Winans, 198 U.S.
371, a case involving interpretation of a Stevens Treaty made with the
Yakama Indians,7 the reservation of rights doctrine holds that a treaty
between the federal government and an Indian tribe is not a grant of rights
to the Indians but, rather, a grant from them. In other words, the Indians
ceded certain rights possessed by them at the time of making the treaty but
reserved whatever rights were not expressly granted to the United States.
Winans, 198 U.S. at 381. See also Seufert Bros., 249 U.S. at 199; Fishing
Vessel, 443 U.S. at 679-81; Wilkerson, supra, at 454-55.
Under the reservation of rights doctrine, tribal members have
possessed certain rights, such as hunting and fishing rights, from time
immemorial. A treaty between a tribe and the United States documents a
grant of some rights from the tribe to the federal government. However,
those rights not expressly ceded in the treaty, as well as those expressly
reserved, remain with the tribe. Johnson, supra, at 553.
The reservation of rights doctrine has consistently been applied to
the fishing and hunting provisions of the Stevens Treaties. See, e.g.,
Fishing Vessel, 443 U.S. at 679-81; Seufert Bros., 249 U.S. at 196.
The treaty language at issue here is the following:
The right of taking fish at usual and accustomed grounds and stations
is further secured to said Indians . . . together with the privilege of
hunting . . . on open and unclaimed lands.
This court has interpreted the words "privilege" and "right," as used
in the treaty, to be synonymous. Miller, 102 Wn.2d at 683. The United
States Supreme Court has interpreted the treaty language "securing" or
"secured" rights to be synonymous with "reserving" rights previously
exercised. Fishing Vessel, 443 U.S. at 678.
The State argues that the hunting right reserved by the treaty was
limited to the right previously exercised that is to the ceded lands or to
lands upon which the Nooksack Tribe traditionally hunted. We agree.
The scope of a tribe's off-reservation hunting rights is generally
found in an Indian tribe's aboriginal use of or title to land and its
reservation of the right in a treaty, or by agreement, executive order or
statute. See generally Felix S. Cohen's Handbook of Federal Indian Law
441-46 (Rennard Strickland & Charles F. Wilkinson eds., 1982). Mr. Nye
explains the origin of the right as follows:
Though hunting rights can arise from various sources, most existing
off-reservation hunting rights in the Pacific Northwest were reserved by
tribes in treaties signed with the federal government between 1853 and
1871. Treaties were the primary means by which the federal government
sought to provide for the orderly westward expansion of non-native society.
In the typical treaty, the signatory Indians relinquished their rights to
aboriginal lands in exchange for money and confinement to a reservation
with distinct boundaries.
The reservation system, in addition to minimizing confrontations
between encroaching settlers and the resident Indians, was also intended to
transform Indians into "a pastoral and civilized people." As a result,
game populations were not one of the primary factors considered in the
federal government's choice of reservation lands, and many tribes were
removed to reservations located far from their traditional hunting grounds.
In response to a strong desire on the part of tribes to retain access to
these areas, treaties with Northwest Indians provided for . . . "the
privilege of hunting . . . on open and unclaimed lands{.}" In essence,
these treaty provisions preserved a portion of the aboriginal rights
exercised by the signatory tribes.
Nye, supra, at 177-78 (footnotes omitted). See also Reynolds, supra, at
752 (because the tribes could have reserved their aboriginal hunting and
fishing rights only on lands which they actually hunted and fished at the
time of the treaty, the primary inquiry must determine whether the area
allegedly protected by the treaty formed part of the tribe's aboriginal
territory).
To determine the existence of original Indian title to land, and the
right to hunt and fish following from that title, courts have generally
required a showing of actual use and occupancy over an extended period of
time. In Mitchel v. United States {34 U.S. (9 Pet.) 711 (1835)} the United
States Supreme Court said:
Indian possession or occupation was considered with reference to their
habits and modes of life; their hunting grounds were as much in their
actual possession as the cleared fields of the whites; and their rights to
its exclusive enjoyment in their own way and for their own purposes were as
much respected, until they abandoned them, made a cession to the
government, or an authorized sale to individuals.
In claims against the United States based upon original title, a
requirement of exclusive use and occupancy has been satisfied by a showing
that two or more tribes jointly or amicably hunted in the same area to the
exclusion of others. . . .
The existence of aboriginal hunting and fishing rights, however, does
not necessarily turn upon the existence of original title to lands and is
not dependent upon recognition in a treaty or act of Congress. Aboriginal
rights remain in the Indians unless granted to the United States by treaty,
abandoned, or extinguished by statute. When a treaty has been signed,
aboriginal use may still be important to determine the extent of the rights
reserved under the treaty.
Cohen, supra, at 442-43 (footnotes omitted).
There is no evidence in the record on appeal to support a finding that
the Nooksack Tribe actually occupied or used, over an extended period of
time, the Oak Creek Wildlife Area for hunting. The only area which the
record shows the Tribe clearly used for hunting lies within the lands ceded
to the United States in the treaty.
Defendant Buchanan argues that the Tribe's right to hunt does not
depend on proof of aboriginal title or preexisting hunting practices and
grounds. Instead, he claims the hunting right is based not on aboriginal
title but on the treaty. In support of this argument, Buchanan points to
fishing rights cases which interpret the phrase "usual and accustomed
grounds and stations." These cases, he argues demonstrate that the treaty
right to hunt or fish does not depend on aboriginal title or use. Buchanan
additionally argues that the treaty fishing right is a limited one that
permits fishing only at the usual and accustomed places, but that the
hunting right is limited only to "open and unclaimed lands."
The treaty fishing right which was reserved by the Indians in the
Stevens Treaties has been interpreted to provide a broad right to treaty
tribes to fish outside of their ceded lands in all usual and accustomed
fishing areas, without regard to whether these areas were part of the usual
habitat of the tribe and without regard to whether there had been
consistent and exclusive use of the areas. United States v. Washington,
384 F. Supp. at 332; Fishing Vessel, 443 U.S. at 666. The treaty fishing
right has been interpreted as insuring tribes a right to a fixed percentage
of the number of harvestable fish, United States v. Washington, 384 F.
Supp. at 343, and, further, interpreting the right as a permanent one,
unless abrogated by Congress. United States v. Washington, 384 F. Supp. at
331-32.
In contrast, the treaty hunting right, by its terms, is of a temporary
and self-limiting nature. The right was intended to diminish as lands
became settled, without the need of congressional action. See, e.g.,
Hicks, 587 F. Supp. at 1165. The treaty hunting clause contained in the
Stevens Treaties has not received the extent of analysis to which the
fishing clause has been subjected and, although State v. Chambers, 81 Wn.2d
929, noted that the defendant, a Yakama tribal member, killed a deer on
privately-owned property at least 40 miles from the nearest territory ceded
to the United States by the Yakamas in their treaty, the issue now before
us has not previously been squarely addressed by this court. See also
Hicks, 587 F. Supp. at 1164.
The Supreme Courts of Idaho and Montana, interpreting Stevens
Treaties, have held the treaty right is a reserved right "to hunt upon
open and unclaimed land . . . at any time of the year in any of the lands
ceded to the federal government though such lands are outside the boundary
of their reservation." Arthur, 74 Idaho at 265; see also State v. Coffee,
97 Idaho 905, 556 P.2d 1185 (1976); State v. Stasso, 172 Mont. 242, 563
P.2d 562 (1977) (relying on the Idaho cases).
Mr. Nye provides the following analysis:
Treaty clauses reserving Indian rights to hunt on "open and unclaimed
lands" . . . do not expressly limit these rights to ceded lands. However,
treaties were reservations of aboriginal rights, and both the signatory
tribes and the federal treaty negotiators understood that rights of access
would be limited to traditional hunting grounds which remained "open and
unclaimed" or "unoccupied."
. . . If the principles of treaty construction are strictly followed
. . . the right should be limited to the aboriginal hunting grounds of the
signatory Indians. This line of demarcation should be based not on the
treaty descriptions, but on other evidence which better captures the
understanding of the Indians upon entering the treaty. Any line drawn must
necessarily be approximate, and the principles of treaty interpretation
require that any ambiguous questions be resolved in favor of the Indians.
Nye, supra, at 190-91 (footnotes omitted).
The geographic scope of the hunting right cannot be resolved from the
language of the treaty alone. We hold that application of the reservation
of rights doctrine is the more legally sound approach to interpreting the
hunting rights provision of the Treaty of Point Elliott. Under such an
analysis, open and unclaimed lands within the aboriginal hunting grounds of
the Nooksack Tribe are reserved under the treaty for hunting by tribal
members, so long as the lands remain open and unclaimed. The geographic
area available for hunting would certainly include the territory ceded to
the United States and described in article I of the Treaty of Point
Elliott, and may include other areas if those areas are proven to have been
actually used for hunting and occupied by the Nooksack Tribe over an
extended period of time. Because the trial court did not so limit the
geographic scope of the Nooksack's treaty, we reverse the dismissal of the
charges against defendant Buchanan. However, we hold that, on remand, the
defendant should have the opportunity to prove that the Nooksack Tribe's
aboriginal hunting grounds include the land within the Oak Creek Wildlife
Area.
We next consider whether the Oak Creek Wildlife Area is "open and unclaimed
land" under the meaning of the Treaty of Point Elliott.
Under article 5 of the treaty, the Nooksack Tribe has a right to hunt
on open and unclaimed lands. The United States Supreme Court has held that
the treaty right to hunt, like the treaty right to fish, may only be
regulated by the state "in the interest of conservation, provided the
regulation meets appropriate standards and does not discriminate against
the Indians." Antoine, 420 U.S. at 207 (citing Puyallup Tribe v.
Department of Game, 391 U.S. 392, 398, 88 S. Ct. 1725, 20 L. Ed. 2d 689
(1968)). The "appropriate standards" requirement obligates the state to
prove that its regulation is a "reasonable and necessary conservation
measure, and that its application to the Indians is necessary in the
interest of conservation." Antoine, 420 U.S at 207 (citation omitted).
See also Miller, 102 Wn.2d at 688 n.5 ("We do not read Antoine as giving
Indians the exclusive right to hunt, but rather as ensuring that their
right to hunt is not impaired for purposes other than those of
conservation.")
The trial court entered a finding of fact stating that the State had
not produced any evidence that the treaty tribe hunters were capable of
having a significant impact on the elk population in the Oak Creek area or
in the State of Washington and, further, that the State had failed to
sustain its burden of proving that the application of its regulations to
Nooksack Indians or to Point Elliott Treaty hunters is necessary for
conservation. The State did not assign error to this finding and,
therefore, it is a verity on appeal. State v. Smith, 130 Wn.2d 215, 223,
922 P.2d 811 (1996); State v. Echeverria, 85 Wn. App. 777, 783, 934 P.2d
1214 (1997). The question of whether the State's regulations, which closed
the hunting season, restricted the taking of antlered elk and established a
winter feeding station, are necessary conservation measures is not properly
before the court.
We limit our inquiry to whether the Oak Creek Wildlife Area is open
and unclaimed land within the meaning of the Treaty of Point Elliott.
This court has previously interpreted the meaning of "open and
unclaimed lands" as that term is used in Stevens Treaties in two decisions.
Under both decisions, publicly-owned lands are considered "open and
unclaimed." In Miller, 102 Wn.2d at 680 n.2, the court held that national
forest land is "open and unclaimed" land within the meaning of the treaty.
In Chambers, 81 Wn.2d at 936, this court approved a jury instruction
defining "open and unclaimed lands" as "lands which are not in private
ownership." These decisions are consistent with those of other
jurisdictions interpreting Stevens Treaties. See Stasso, 172 Mont. at 248
(national forest service lands that have not been patented to a private
person are open and unclaimed lands within the meaning of a Stevens
Treaty); Arthur, 74 Idaho at 261 (the term "open and unclaimed" land as
used in a Stevens Treaty was intended to include and embrace such lands as
were not settled and occupied by the whites under possessory rights or
patent or otherwise appropriated to private ownership and may include
national forest reserve lands); Coffee, 97 Idaho 905 (privately-owned land
is not open and unclaimed within the meaning of a Stevens Treaty);
Confederated Tribes of Umatilla Indian Reservation v. Maison, 262 F. Supp.
871 (D. Ore. 1966) (national forests lands considered open and unclaimed
under the terms of a Stevens Treaty), aff'd sub nom. Holcomb v.
Confederated Tribes of Umatilla Indian Reservation, 382 F.2d 1013 (9th Cir.
1967). See also Hicks, 587 F. Supp. at 1165 (trial court opined that the
construction of "open and unclaimed lands" that best accommodates Indian
hunting as settlement occurs and matures is that "open and unclaimed lands"
include public lands put to uses consistent with an Indian hunting
privilege).
The State, relying on Hicks, argues that once the hunting regulations with
respect to elk went into effect, the use of the Oak Creek Wildlife Area for
hunting was not a compatible use and, therefore, the lands were not open
and unclaimed. Our acceptance of this argument would permit the State to
avoid its burden of proving that regulations imposed on Indian treaty
hunters are necessary for conservation purposes. See Miller, 102 Wn.2d at
688. The State has designated the Oak Creek Wildlife Area for use for
hunting, fishing and recreation. Limits on these activities in the Oak
Creek Wildlife Area are by State regulation. The regulations must comply
with standards developed by this court and the United States Supreme Court,
and be necessary for conservation if the regulations are restrictive of
treaty rights. The trial court's unchallenged finding in this case is that
the State has not met its burden in this regard.8
The State also relies on State v. Cutler, 109 Idaho 448, 708 P.2d 853
(1985), to support its argument that lands which are located in a State-
owned wildlife area which is operated as a wintering range for elk and deer
are not "open and unclaimed." The treaty interpreted in Cutler was not a
Stevens Treaty and the pertinent language of the treaty provided the
Indians had the right to hunt on "unoccupied lands of the United States."
The Cutler court held that the state wildlife area, which was converted
from a privately-owned ranch, was "occupied" by the State of Idaho and that
sufficient indicia of occupancy existed (fences, signs, cattle guards,
cultivated fields, machinery, roads, campgrounds and buildings) to put the
Indian hunters on notice that the land was not "unoccupied lands of the
United States." Cutler, 109 Idaho at 454. The State offered no evidence
in this case that would bring it within the rationale of Cutler.
From the rulings in the various cases which discuss the issue, and in
light of the treaty language, we discern that a general statement of the
rule is that publicly-owned lands, which are not obviously occupied and
which are put to a use which is compatible with hunting, are "open and
unclaimed lands" under the terms of the Stevens Treaties. Treaty hunters
have a right to hunt on such lands, unrestricted by State regulation,
unless the regulations are necessary for conservation purposes. Miller,
102 Wn.2d 678. In this case, the Oak Creek Wildlife Area is publicly
owned, is obviously unoccupied, and its purposes are compatible with and,
in fact, include hunting. The trial court and Court of Appeals correctly
determined that the Oak Creek Wildlife Area is open and unclaimed land.
Finally, the State urges this court to hold that the federal statute
creating the State of Washington and admitting the state "into the Union on
an equal footing with the original States," Act of February 22, 1889, 25
Stat. 676, 678, impliedly abrogated the treaty hunting rights of Indians
living in Washington.
In support of its argument the State primarily relies on Ward v. Race
Horse, 163 U.S. 504, 16 S. Ct. 1076, 41 L. Ed. 244 (1896), a case in which
the Supreme Court held that Congress, in admitting Wyoming to the Union on
equal footing with the original states, effectively abrogated the Indian
treaty hunting rights of certain treaty Indians in Wyoming. See also Crow
Tribe of Indians v. Repsis, 73 F.3d 982 (10th Cir. 1995) (applying Race
Horse to another treaty applicable to tribes residing within the State of
Wyoming); McCoy, 63 Wn.2d 421 (where this court held the treaty fishing
rights of Indians who were parties to the Treaty of Point Elliott were
impliedly abrogated by Washington's admission to the Union).
After oral argument in this case, the United States Supreme Court
effectively overruled Race Horse in Minnesota v. Mille Lacs, 1999 WL 155689
(Rehnquist, C.J., dissenting) (noting the majority's "apparent overruling
sub silentio" of Race Horse). The Supreme Court rejected use of the equal
footing language to find an abrogation of Indian treaty rights, holding
"treaty rights are not impliedly terminated upon statehood." Mille Lacs,
1999 WL 155689, at *2.
This decision is consistent with the decisions over the past 100
years, since Race Horse was decided, in which the Supreme Court has
clarified and refined the law governing interpretation and abrogation of
Indian treaty hunting and fishing rights. In contrast to the language in
Race Horse, where the Court discussed the treaty's "grant" of rights to the
Indians, the Supreme Court now views the grant as one from the Indians,
with a reservation of rights not granted. Winans, 198 U.S. at 381; Fishing
Vessel, 443 U.S. at 680. The Court has further stated that although
Congress has the sole power to eliminate a treaty right, South Dakota v.
Yankton Sioux Tribe, U.S. , 118 S. Ct. 789, 798, 139 L. Ed. 2d 773
(1998), its intention to abrogate Indian treaty rights must be clear and
plain. United States v. Dion, 476 U.S. 734, 738, 106 S. Ct. 2216, 90 L.
Ed. 2d 767 (1986). Absent explicit statutory language, the Court is
"extremely reluctant" to find congressional abrogation of treaty rights.
Fishing Vessel, 443 U.S. at 690. It therefore will not construe statutes
as abrogating a treaty right in a backhanded way but will require "clear
evidence that Congress actually considered the conflict between its
intended action on the one hand and Indian treaty rights on the other, and
chose to resolve that conflict by abrogating the treaty." Dion, 476 U.S.
at 739-40.
Furthermore, the Supreme Court has undermined the premise upon which
Race Horse was decided by holding that "treaty rights to hunt, fish . . .
are not irreconcilable with a State's sovereignty over the natural
resources in the State." Mille Lacs, 1999 WL 155689, at *19. Washington's
enabling act, 25 Stat. 676 (1889), differs from the statute admitting
Wyoming to the Union, in that the statute admitting Washington reserves
from Washington the right to control lands owned or held by any Indian or
Indian tribe. 25 Stat. 676-77 (1889). This clause makes it clear that
Congress had the Indians' treaty rights in mind when it created the State
of Washington, but did not go on to expressly abrogate the treaty hunting
rights. Under Dion and Mille Lacs, we are unable to hold that, in the
enabling act, Congress impliedly abrogated Indian treaty rights. Fishing
Vessel, 443 U.S. at 690.
Reversed.
WE CONCUR:
1 Treaty Between the United States and the Dwamish, Suquamish, and other
allied and subordinate Tribes of Indians in Washington Territory, Jan. 22,
1855, 12 Stat. 927.
2 Former RCW 77.16.020(1) provided in pertinent part: "It is unlawful to
hunt, fish, possess, or control a species of game bird, game animal, or
game fish during the closed season for that species." Laws of 1987, ch.
506, sec. 59. Former RCW 77.21.010(1) provided that a subsequent violation
of the hunting laws must be prosecuted and punished as a Class C felony.
Laws of 1988, ch. 265, sec. 3. Former RCW 77.21.060(2) provided, in
pertinent part, that it was "unlawful for a person to conduct an activity
requiring a wildlife license, tag, or stamp for which they have had a
license forfeiture{.}" Laws of 1989, ch. 314, sec. 6. In 1998 the
Legislature revised and recodified the criminal laws governing the taking
of fish and wildlife. Laws of 1998, ch. 190. The prohibitions and
penalties have not changed. See RCW 77.15.410 (unlawful hunting of big
game); RCW 77.15.670 (unlawful hunting while hunting privileges revoked).
3 The tribes joining in the amicus brief are the Squaxin Island Tribe,
Tulalip Tribes, Nisqually Indian Tribe, Port Gamble, Jamestown and Lower
Elwha Bands of S'Klallam for the Skokomish Tribe, Puyallup Tribe, Upper
Skagit Tribe, Sauk-Suiattle Tribe, Stillaguamish Tribes, Swinomish Indian
Tribal Community, Suquamish Tribe, Yakama Indian Nation, Lummi Tribe,
Nooksack Tribe, and Muckleshoot Indian Tribe.
4 The first of the so-called "Boldt decisions" is set forth in United
States v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974). The underlying
litigation and the Boldt decision orders have been the subject of numerous
actions in both Washington and federal courts. Puget Sound Gillnetters
Ass'n v. Moos, 92 Wn.2d 939, 603 P.2d 819 (1979), traces the history of the
litigation through 1979.
5 In addition to what is now Washington State, Washington Territory
included parts of Idaho, Montana and Oregon. See Charles F. Wilkinson,
Indian Tribal Rights and the National Forests: The Case of the Aboriginal
Lands of the Nez Perce Tribe, 34 Idaho L. Rev. 435, 436-37 (1998).
6 In some of the treaties the language with respect to shellfish is
omitted. See, e.g., Treaty Between the United States and the Walla-Walla, &nb