Under the provision of the treaty of May 29, 1855, with the
Yakima Indian, reserving to the members of the tribe the light to
take fish "at all usual and accustomed places, in common with the
citizens" of Washington Territory, the State of Washington has the
power to impose on the Indians equally with others such
restrictions of a purely regulatory nature concerning the time and
manner of fishing outside the reservation as are necessary for the
conservation of fish, but it cannot require them to pay license
fees that are both regulatory and revenue-producing. P.
315 U. S. 685.
7 Wash. 2d 124, 109 P.2d 280, reversed.
Page 315 U. S. 682
MR. JUSTICE BLACK delivered the opinion of the Court.
The appellant, Sampson Tulee, a member of the Yakima tribe of
Indians, was convicted in the Superior Court for Klickitat County,
Washington, on a charge of catching salmon with a net without first
having obtained a license as required by state law. [
Footnote 1] The Supreme Court of Washington
affirmed. 7 Wash. 2d 124, 109 P.2d 280. The case is here on appeal
under Section 237(a) of the Judicial Code, 28 U.S.C. ยง 344(a), the
appellant challenging the validity of the State of Washington
statute as applied to him on the ground that it was repugnant to a
treaty made between the United States and the Yakima Indians.
In 1855, the Yakimas and other Indians owned and occupied
certain lands in the Territory of Washington, which the United
States wished to open up for settlers. May 29, 1855,
representatives of the government met in council with
representatives of the Indians, and, after extended discussions
lasting until June 11, the Indians agreed to a treaty under which
they were to cede 16,920 square miles of their territory, reserving
1,233 square miles for the confederated tribes represented at the
meeting. As consideration for the cession by the Indians, a cession
which furthered the national program of transforming wilderness
into populous, productive territory,
Page 315 U. S. 683
the government agreed to pay $200,000; to build certain schools,
shops, and mills and keep them equipped for twenty years; to erect
and equip a hospital, and to provide teachers and various helpers
for twenty years. This agreement was ratified and proclaimed as a
treaty in 1859. 12 Stat. 951.
The appellant claims that the Washington statute compelling him
to obtain a license in order to fish for salmon violates the
following provision of Article III of the treaty:
"The exclusive right of taking fish in all the streams, where
running through or bordering said reservation, is further secured
to said confederated tribes and bands of Indians, as also the right
of taking fish at all usual and accustomed places, in common with
citizens of the Territory, and of erecting temporary buildings for
curing them, together with the privilege of hunting, gathering
roots and berries, and pasturing their horses and cattle upon open
and unclaimed land."
The state does not claim power to regulate fishing by the
Indians in their own reservation.
Pioneer Packing Co. v.
Winslow, 159 Wash. 655, 294 P. 557. Nor does it deny that
treaty rights of Indians, whatever their scope, were preserved by
Congress in the act which created the Washington Territory and the
enabling act which admitted Washington as a state. 10 Stat. 172; 25
Stat. 676. Relying upon its broad powers to conserve game and fish
within its borders, [
Footnote
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. It argues that the
treaty should not be construed
Page 315 U. S. 684
as an impairment of this right, and that, since its license laws
do not discriminate against the Indians, they do not conflict with
the treaty. The appellant, on the other hand, claims that the
treaty gives him an unrestricted right to fish in the "usual and
accustomed places," free from state regulation of any kind. We
think the state's construction of the treaty is too narrow, and the
appellant's too broad; that, while the treaty leaves the state with
power to impose on Indians equally with others such restrictions of
a purely regulatory nature concerning the time and manner of
fishing outside the reservation as are necessary for the
conservation of fish, [
Footnote
3] it forecloses the state from charging the Indians a fee of
the kind in question here.
In determining the scope of the reserved rights of hunting and
fishing, we must not give the treaty the narrowest construction it
will bear. In
United States v. Winans, 198 U.
S. 371, this Court held that, despite the phrase "in
common with citizens of the territory," Article III conferred upon
the Yakimas continuing rights, beyond those which other citizens
may enjoy, to fish at their "usual and accustomed places" in the
ceded area, and in
Seufert Bros. Co. v. United States,
249 U. S. 194, a
similar conclusion was reached even with respect to places outside
the ceded area. From the report set out in the record before us of
the proceedings in the long council at which the treaty agreement
was reached, we are impressed by the strong desire the Indians had
to retain the right to hunt and fish in accordance with the
immemorial customs of their tribes. It is our responsibility to see
that the terms of the treaty are carried out, so far as possible,
in accordance with the meaning they were understood to have by the
tribal representatives at the council and in a
Page 315 U. S. 685
spirit which generously recognizes the full obligation of this
nation to protect the interests of a dependent people.
United
States v. Kagama, 118 U. S. 375,
118 U. S. 384;
Seufert Bros. Co. v. United States, supra, 249 U. S.
198-199.
Viewing the treaty in this light, we are of the opinion that the
state is without power to charge the Yakimas a fee for fishing. A
stated purpose of the licensing act was to provide for "the support
of the state government and its existing public institutions." Laws
of Washington, 1937, c. 149, pp. 529, 534. The license fees
prescribed are regulatory, as well as revenue producing. But it is
clear that their regulatory purpose could be accomplished
otherwise, that the imposition of license fees is not indispensable
to the effectiveness of a state conservation program. Even though
this method may be both convenient and, in its general impact fair,
it acts upon the Indians as a charge for exercising the very right
their ancestors intended to reserve. We believe that such exaction
of fees as a prerequisite to the enjoyment of fishing in the "usual
and accustomed places" cannot be reconciled with a fair
construction of the treaty. We therefore hold the state statute
invalid as applied in this case.
The judgment of the Supreme Court of Washington is
Reversed.
[
Footnote 1]
"It shall be unlawful to catch, take, or fish for food fish with
any appliance or by any means whatsoever except with hook and line
. . . unless license so to do has been first obtained. . . ."
Remington's Revised Statutes of Washington, Section 5693. "For
each dip bag net license for the taking of salmon on the Columbia
River, [the license fee shall be] five dollars. . . ."
Id.
(vol. 7, 1940 Supp.), Section 5703.
[
Footnote 2]
Geer v. Connecticut, 161 U. S. 519;
Ward v. Race Horse, 163 U. S. 504,
163 U. S. 507;
Patsone v. Pennsylvania, 232 U. S. 138;
Lacoste v. Dept. of Conservation, 263 U.
S. 545,
263 U. S.
549.
[
Footnote 3]
Cf. Kennedy v. Becker, 241 U.
S. 556.
See United States v. Winans, supra,
198 U. S.
384.