State v. Jim

725 P.2d 365, 81 Or. App. 177

• Court: Court of Appeals of Oregon
• Decided: September 10, 1986
• Docket: CR 82-315; CA A33716
• Status: Published

Opinions

BUTTLER, P. J.

Defendant was convicted of the sale of food fish during a closed commercial season, in violation of ORS 509.011, which makes it “unlawful to: [b]uy, receive, possess or sell food fish unlawfully caught during a closed season.” ORS 509.011(2)(a). Defendant, a member of the Yakima Indian Nation, admits that, on April 28,1982, he caught salmon from the Columbia River, which he later sold at Celilo Indian Village to an undercover special agent for the National Marine Fisheries Service, and that, on that date, the commercial fishing season was closed.

The fish were caught pursuant to a ceremonial fishing permit issued by the Warm Springs tribe,¹ which authorized sale of fish only to the tribe. Any sale to others violated Warm Springs tribal law. If the fish were caught for ceremonial purposes only, they were lawfully caught; if, however, they were caught for commercial purposes, they were unlawfully caught within the meaning of ORS 509.011. Defendant assigns no error to the sufficiency of the evidence to establish that the fish were unlawfully caught. He concedes that he caught the salmon when the season was closed to commercial fishing and that he sold them to undercover agents, which was in violation of state law.²

His principal contention, and the only one on which we write,³ is that the state may not assert jurisdiction over him to enforce violation of state fishing regulations, because he was exercising his rights under the 1855 treaty with the Yakima tribes. The state contends that, because the fish were unlawfully sold, it may assert its jurisdiction for either of two reasons: (1) defendant was not acting in compliance with Warm Springs tribal laws and was not, as a consequence, protected by the Yakima treaty fishing rights; and (2) the state may regulate treaty fishing when the regulation is reasonable and necessary for conservation purposes and is nondiscriminatory, and those requirements are met here.

In 1855, the United States entered into a treaty with the Yakima tribes, under which the tribes ceded to the United States their right and title to a substantial portion of their lands in exchange for the present reservation lands and some nominal consideration, reserved hunting and fishing rights on the reservation and also reserved “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory * * Treaty with the Yakima Nation of Indians, Art III, 12 Stat 951 (signed June 9, 1855; ratified by the Senate March 8, 1859; proclaimed by the President April 18, 1859). The “right of taking fish” includes the right to sell fish commercially. See Sohappy v. Smith, 302 F Supp 899 (D Or 1969).

Celilo Indian Village, where defendant sold the fish, is a “usual and accustomed place” where Columbia River treaty Indians, including Yakimas, may exercise their treaty rights.⁴ Because the fishing rights at those sites are held “in common with” other citizens, states may regulate Indian fishing there, but only when the regulation is necessary for conservation, “provided the regulation meets appropriate standards and does not discriminate against the Indians.” Puyallup Tribe v. Dept. of Game, 391 US 392, 398, 88 S Ct 1725, 20 L Ed 2d 689 (1968) (Puyallup I). To meet the appropriate standards, “the State must demonstrate 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 v. Washington, 420 US 194, 207, 95 S Ct 944, 43 L Ed 2d 129 (1975). (Citations omitted; emphasis in original.) Therefore, the three requirements which the state must prove before it may assert jurisdiction over Indian treaty fishers at usual and accustomed sites are that (1) the regulation is a reasonable and necessary conservation measure; (2) the application of the specific regulation to treaty fishers is necessary in the interest of conservation, and (3) the regulation does not discriminate against treaty fishers.* **⁵

Here, the record contains no evidence in support of its jurisdiction over treaty fishers. The state was somewhat ambivalent as to whether proof of a conservation purpose was necessary.⁶ However, it did offer to produce a document entitled “A Plan for Managing Fisheries on Stocks Originating from the Columbia River and its Tributaries above Bonneville Dam” (The Plan),⁷ which had been drawn up and consented to by Oregon and Washington and by the tribes and had been approved by the federal court, which had retained jurisdiction over Indian treaty fishing rights in that area. United States v. Oregon, Civil No. 68-513, supra n 7. That document was not received in evidence, because, apparently, the trial court stated that it could take judicial notice of it, if necessary. The record does not disclose whether the trial court did so.

However, since the trial of this case, United States v. Sohappy, supra n 4, was decided, affirming a conviction entered before this trial. That case involved a prosecution under the Lacey Act for fishing during the same closed commercial season under Oregon law as is involved here. The court held that the closure of Columbia River commercial fishing during the spring of 1982 was reasonable and necessary for conservation, and was valid as applied to treaty fishers through Lacey Act federal prosecutions. The court, after discussing The Plan, stated:

“The states set the 1982 commercial fishing season via the Columbia River Compact, an interstate agency controlling commercial fishing on the Columbia River. The Compact received recommendations from the Washington and Oregon fisheries departments that explained that the seriously depressed upriver spring chinook run required that there be no spring 1982 commercial fishing season.

“It is especially significant that the Columbia River Inter-tribal Fish Commission, representing the treaty tribes, agreed with that recommendation stating that it ‘recognizes that the 1982 upriver spring chinook run will be a record or near-record low. [Thus,] no commercial harvest of these fish can be justified.’ The Yakima and Warm Springs tribes concurred. The Columbia River Compact accepted the recommendations and closed the fishery for the spring of 1982 saying that the closure was ‘reasonable and necessary for conservation’ and that there was no ‘less restrictive alternative.’ We conclude that the government has adequately established the validity of the 1982 spring season ban adopted by the Compact.” 770 F2d at 824.

Here, the trial court recognized that it was necessary that it be established that the regulation sought to be enforced met the requisite conservation purpose standards. However, it stated that, once the United States District Court in Oregon approved a particular regulation of fishing on the Columbia pursuant to The Plan, see n 7, supra, that court’s determination controlled, relieving the state of its burden to make that showing. Although the trial court’s discussion evidenced a thorough familiarity with the history of the problem and of the documents involved in solving it, the court did not, in so many words, state that it was taking judicial notice of them.

It is apparent from United States v. Sohappy, supra n 4, that the regulation here involved had been approved by the United States District Court in Oregon and had been held by the trial court in that case to meet the requisite conservation standards before the trial of this case. Because such matters are the subject of judicial notice, OEC 201, and because the question of the state’s authority to prosecute defendant is a question of law, there is no reason to remand to permit the trial court to take judicial notice. This court may do so and is bound by the court’s determination in United States v. Sohappy, supra n 4.

Affirmed.

1 The ceremonial permit was issued to defendant’s stepson, Lyman Jim, who, along with defendant’s wife, Melinda Jim, is a member of the Warm Springs Confederated Tribes. The permit listed three helpers for Lyman, including Melinda. Defendant was not named on the permit, but the state concedes that he was permitted to fish pursuant to it.

2 State regulations established a closed commercial fishing season on April 28, 1982, making sale of the fish unlawful.

3 He asserts 12 assignments of error, only one of which we address.

4 Defendant argues that Celilo is an Indian reservation where the state is precluded from exercising its jurisdiction. In 1947, because of destruction of usual and accustomed fishing sites by construction of the Bonneville Dam, the United States government purchased the Celilo tract to be held

“in trust * * * for the use of the Yakima Indian Tribes, * * * the Confederated Tribes of the Warm Springs Reservation, and other Columbia River Indians affiliated with the aforementioned tribes and entitled to enjoy fishing rights at their old and accustomed fishing sites at or in the vicinity of Celilo Falls on the Columbia River.” 61 Stat 466 (1947).

The term “Indian reservation” is not defined by statute. When land is declared by Congress to be held in trust by the federal government for the benefit of Indians, it is generally considered a “reservation.” See United States v. John, 437 US 634, 649, 98 S Ct 2541, 57 L Ed 2d 489 (1978); United States v. Pelican, 232 US 442, 449, 34 S Ct 396, 58 L Ed 676 (1914). The Ninth Circuit found that Celilo is a “reservation” for purposes of federal prosecution under the Lacey Act, 16 USC § 3372, which permits the federal government to prosecute violations of federal, state and tribal wildlife laws. United States v. Sohappy, 770 F2d 816 (9th Cir 1985), cert den 106 S Ct 3278 (1986).

Although Celilo may be a reservation in the general sense, it seems clear that it is not a part of the reservation of any particular tribe. In some instances, the preferential treatment accorded reservation fishing is the result of treaties that reserved exclusive fishing rights on reservations, in which cases we assume that the state may not assert its jurisdiction. However, Celilo, by statute, is land held in trust by the United States for use by tribes “entitled to enjoy fishing rights at their old and accustomed fishing sites at or in the vicinity of Celilo Falls * * 61 Stat 466 (1947). Here, the reserved fishing rights at usual and accustomed places are held “in common with” nontreaty fishers; therefore the analysis of the state’s jurisdiction over events occurring at Celilo is the same as that at other, off-reservation, usual and accustomed sites. In any event, in Puyallup Tribe v. Washington Game Dept., 433 US 165, 97 S Ct 2616, 53 L Ed 2d (1977) (Puyallup III), the Supreme Court applied the conservation purpose analysis to on-reservation fishing by treaty Indians when the fishing rights on the reservation were not exclusive to Indians.

5 See State v. Jim (Bruce), 81 Or App 189, 725 P2d 372 (1986), for a more complete discussion of what is meant by “reasonable and necessary” and “conservation.”

6 Although the state now relies on State v. Gowdy, 1 Or App 424, 462 P2d 461 (1969), to support its argument that it need not prove a conservation purpose when a treaty Indian is fishing in violation of tribal law, it did not do so below. We need not decide here whether Gowdy was correctly decided or whether, if it was, it remains viable. We note, however, that in United States v. Sohappy, supra n 4, the defendant had violated both state and tribal law. The federal government sought to prosecute for both violations under the Lacey Act, which provides that

“(a) * * *

“It is unlawful for any person—

“(1) to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken or possessed in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law;

“(2) to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce—

“(A) any fish or wildlife taken, possessed, transported, or sold in violation of any law or regulation of any state * * 16 USC § 3372.

Notwithstanding the defendant’s violation of tribal laws, the court held that, in order for the federal government to enforce state law pursuant to the Lacey Act, it first had to establish that the state regulation was valid as applied to treaty fishers, applying the same test that would apply if the state were enforcing it. 770 F2d at 823-24. The specially concurring opinion would hold that Gowdy is correct and governs here, notwithstanding Sohappy, which it says is wrong.

Even if Gowdy is correct, it is not applicable here. In Gowdy, this court held that a treaty Indian fishing in violation of his tribe’s regulations is “acting outside of the treaty rights” and therefore is unprotected by them. 1 Or App at 431. Unlike in Gowdy, defendant here is a member of a tribe (Yakima) other than the one whose tribal laws were violated. There is no evidence that defendant violated Yakima tribal law, only that of the Warm Springs Confederated Tribes. Although there may be provisions for inter-tribal enforcement of tribal regulations, especially when a treaty Indian is fishing under another tribe’s permit, neither party addresses that issue.

More to the point, defendant asserts a treaty right, not a right under tribal laws; it is the treaty right that triggers the necessity of the state to establish the conservation purpose of its regulation in order to enforce it against treaty Indians. The specially concurring opinion insists that defendant must assert that a tribal right permitted his actions and, if he does so, the state must prove beyond a reasonable doubt that tribal regulations forbade what defendant did. 81 Or App at 187. Apparently, the question would be for the jury, which is an odd way to resolve what has been characterized as a jurisdictional question for the court. That approach ignores the long history of litigation involving a state’s effort to enforce its regulations against treaty Indians.

7 In United States v. Oregon, Civil No. 68-513, District of Oregon, reported as Sohappy v. Smith, supra, a consolidated case that challenged the validity of certain Oregon fishing statütes and regulations as being contrary to treaties of the United States, the federal court clarified the limits on state regulation of treaty fishing, and retained continuing jurisdiction over the Columbia River fisheries. The Plan referred to in the text was an outgrowth of that case whereby, in 1977, the states of Oregon and Washington, the Warm Springs, Yakima, Umatilla and Nez Perce tribes entered into a five-year plan for managing fisheries in the Columbia River system. That Plan was approved by and became an order of the federal District Court for the District of Oregon on February 28,1977. Paragraph (9) of The Plan provides:

“Regulations affecting treaty users which are enacted in conformity with this comprehensive plan shall be considered as complying with the court’s decrees enunciated in U. S. v. Oregon, Civil No. 68-513, District of Oregon.”

As noted in United States v. Sohappy, supra n 4, The Plan, by itself, does not meet the requirements imposed on the state to establish a conservation purpose. The regulation must be in conformity with The Plan.