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Because it was the tribes that were given a right in common with non-Indian citizens, it is especially likely that a class right to a share of fish, rather than a personal right to attempt to land fish, was intended. In our view, the purpose and language of the treaties are unambiguous; they secure the Indians' right to take a share of each run of fish that passes through tribal fishing areas.
But our prior decisions provide an even more persuasive reason why this interpretation is not open to question. For notwithstanding the bitterness that this litigation has engendered, the principal issue involved is virtually a "matter decided" by our previous holdings.
The Court has interpreted the fishing clause in these treaties on six prior occasions. In all of these cases, the Court placed a relatively broad gloss on the Indians' fishing rights and -- more or less explicitly -- rejected the State's "equal opportunity" approach; in the earliest and the three most recent cases, moreover, we adopted essentially the interpretation that the United States is reiterating here.
In United States v. Winans, supra, the respondent, having acquired title to property on the Columbia River and having obtained a license to use a "fish wheel" -- a device capable of catching salmon by the ton and totally destroying a run of fish -- asserted the right to exclude the Yakimas from one of their "usual and accustomed" places. The Circuit Page U. The Court initially rejected an argument that is analogous to the "equal opportunity" claim now made by the State: Indeed, acquired no rights but such as they would have without the treaty.
This is certainly an impotent outcome to negotiations and a convention which seemed to promise more and give the word of the Nation for more. How the treaty in question was understood may be gathered from the circumstances. New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of rights from them -- a reservation of those not granted.
And the form of the instrument and its language was adapted to that purpose. There was an exclusive right to fishing reserved within certain boundaries.
There was a right outside of those boundaries reserved 'in common with citizens of the Territory. Citizens might share it, but the Indians were secured in its enjoyment by a special provision of means for its exercise. They were given 'the right of taking fish at all usual and accustomed places,' and the right 'of erecting temporary buildings for curing them.
No other conclusion would give effect to the treaty. See also Seufert Bros. See n 22, supra. But even more significant than the language in Winans is its actual disposition. The Court not only upheld the Indians' right of access to respondent's private property, but also ordered the Circuit Court on remand to devise some "adjustment and accommodation" that would protect them from total exclusion from the fishery.
Although the accommodation it suggested by reference to the Solicitor General's brief in the case is subject to interpretation, it clearly included removal of enough of the fishing wheels to enable some fish to escape and be available to Indian fishermen upstream. Brief for United States, O. In short, it assured the Indians a share of the fish.
In the more recent litigation over this treaty language between the Puyallup Tribe and the Washington Department of Game, [ Footnote 24 ] the Court in the context of a dispute over rights to the run of steelhead trout on the Puyallup River reaffirmed both of the holdings that may be drawn from Winans -- the treaty guarantees the Indians more than simply the "equal opportunity" along with all of the citizens of the State to catch fish, and it in fact assures them some portion of each Page U.
But the three Puyallup cases are even more explicit; they clearly establish the principle that neither party to the treaties may rely on the State's regulatory powers or on property law concepts to defeat the other's right to a "fairly apportioned" share of each covered run of harvestable anadromous fish.
In Puyallup I, the Court sustained the State's power to impose nondiscriminatory regulations on treaty fishermen so long as they were "necessary" for the conservation of the various species. In so holding, the Court again explicitly rejected the equal opportunity theory. Although nontreaty fishermen might be subjected to any reasonable state fishing regulation serving any legitimate purpose, treaty fishermen are immune from all regulation save that required for conservation.
Although, under the challenged regulation, every individual fisherman would have had an equal opportunity to use a hook and line to land the steelhead, most of the fish would obviously have been caught by thenontreaty licensees, rather than by the handful of treaty fishermen. This Court vindicated the Indians' treaty right to "take fish" by invalidating the ban on Indian net fishing and remanding the case with instructions to the state courts to determine the portion of harvestable steelhead that should be allocated to net fishing by members of the tribe.
Even if Winans had not already done so, this unanimous holding foreclosed the basic argument that the State is now advancing. We shall later discuss how that specific percentage was determined; what is material for present purposes is the recognition, upheld by this Court in Puyallup III, that the treaty secured the Tribe's right to a substantial portion of the run, and not merely a right to compete with nontreaty fishermen on an individual basis.
For although it is clear that the Tribe may exclude non-Indians from access to fishing Page U. In support of our holding that the State has regulatory jurisdiction over on-reservation fishing, we reiterated Mr. Justice Douglas' statement for the Court in Puyallup II that the "Treaty does not give the Indians a federal right to pursue the last living steelhead until it enters their nets. It is in this sense that treaty and nontreaty fishermen hold "equal" rights. For neither party may deprive the other of a "fair share" of the runs.
Not only all six of our cases interpreting the relevant treaty language, but all federal courts that have interpreted the treaties in recent times have reached the foregoing conclusions, see Sohappy v.
A like interpretation, moreover, has been followed by the Court with respect to hunting rights explicitly secured by treaty to Indians "in common with all other persons,'" Antoine v. The purport of our cases is clear. Nontreaty fishermen may not rely on property law concepts, devices such as the fish wheel, license fees, or general regulations to deprive the Indians of a fair share of the relevant runs of anadromous fish in the case area. Nor may treaty fishermen rely on their exclusive right of access to the reservations to destroy the rights of other "citizens of the Territory.
That, we think, is what the parties to the treaty intended when they secured to the Indians the right of taking fish in common with other citizens. V We also agree with the Government that an equitable measure of the common right should initially divide the harvestable portion of each run that passes through a "usual and accustomed" place into approximately equal treaty and nontreaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount.
The District Court took a similar tack in this case, i. The division arrived at by the District Court is also consistent with our earlier decisions concerning Indian treaty rights to scarce natural resources. In those cases, after determining that, at the time of the treaties, the resource involved was necessary to the Indians' welfare, the Court typically ordered a trial judge or special master, in his discretion, to devise some apportionment that assured that the Indians' reasonable livelihood needs would be met.
Arizona Page U. California, supra, at U. See Winans, U. This is precisely what the District Court did here, except that it realized that some ceiling should be placed on the Indians' apportionment to prevent their needs from exhausting the entire resource, and thereby frustrating the treaty right of "all [other] citizens of the Territory.
Indeed, it found that the non-Indian population depended on Indians to catch the fish that the former consumed. As in Arizona v. California and its predecessor cases, the central principle here must be that Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood -- that is to say, a moderate living. Although the District Court's exercise of its discretion, as slightly modified by the Court of Appeals, see n 18, supra, is in most respects unobjectionable, we are not satisfied that all of the adjustments it made to its division are consistent with the preceding analysis.
The District Court determined that the fish taken by the Indians on their reservations should not be counted against their share. It based this determination on the fact that Indians have the exclusive right under the treaties to fish on their reservations.
But this fact seems to us to have no greater significance than the fact that some nontreaty fishermen may have exclusive access to fishing sites that are not "usual and accustomed" places. Shares in the fish runs should not be affected by the place where the fish are taken. Puyallup III, U. See n 18, supra, and accompanying text. So long as they take fish from identifiable runs that are destined for traditional tribal fishing grounds, such persons may not rely on the location of their take to justify excluding it from their share.
Although it is true that the fish involved are caught in waters subject to the jurisdiction of the United States, rather than of the State, see 16 U. Accordingly, they may justifiably be treated differently from nontreaty fishermen who are not citizens of Washington.
The statutory provisions just cited are therefore important in this context only because they clearly place a responsibility on the United States, rather than the State, to police the take of fish in the relevant waters by Washington citizens insofar as is necessary to assure compliance with the treaties. On the other hand, as long as there are enough fish to satisfy the Indians' ceremonial and subsistence needs, we see no justification for the District Court's exclusion from the treaty share of fish caught for these purposes.
We need not now decide whether priority for such uses would be required in a period of short supply in order to carry out the purposes of the treaty. For present purposes, we merely hold that the total catch -- rather than the commercial catch -- is the measure of each party's right.
VI Regardless of the Indians' other fishing rights under the treaties, the State argues that an agreement between Canada and the United States preempts their rights with respect to the sockeye and pink salmon runs on the Fraser River. Inthe United States and Canada agreed that the catch of Fraser River salmon should be equally divided between Canadian and American fishermen.
Convention of May 26,50 Stat. Each year, that Commission proposes regulations to govern the time, manner, and number of the catch by the fishermen of the two countries; those regulations become effective upon approval of both countries. In the United States, pursuant to statute and Presidential designation, enforcement of those regulations is vested in the Page U.
Jackson v. Denno :: U.S. () :: Justia US Supreme Court Center
The Fraser River salmon run passes through certain "usual and accustomed" places of treaty tribes. The Indians have therefore claimed a share of these runs. Consistently with its basic interpretation of the Indian treaties, the District Court, in its original decision, held that the tribes are entitled to up to one-half of the American share of any run that passes through their "usual and accustomed" places.
To implement that holding, the District Court also entered an order authorizing the use by Indians of certain gear prohibited by IPSFC regulations then in force. The Court of Appeals affirmed, F. In later proceedings commenced inthe State of Washington contended in the District Court that any Indian rights to Fraser River salmon were extinguished either implicitly by the later agreement with Canada or more directly by the IPSFC regulations promulgated pursuant to those agreements insofar as they are inconsistent with the District Court's order.
First, we agree with the Court of Appeals that the Convention itself does not implicitly extinguish the Indians' treaty rights. Absent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights, e. The initial conflict occasioned by the regulations for the season has been mooted by the passage of time, and there is little prospect that a similar conflict will revive and yet evade review.
Sincethe United States, in order to protect the Indian rights, has exercised its power under Art. Those regulations have accordingly not gone into effect in the United States. The Indians' fishing rights and responsibilities have instead been the subject of separate regulations promulgated by the Interior Department, under its general Indian powers, 25 U. The District Court's order is fully consistent with those regulations.
VII In addition to their challenges to the District Court's basic construction of the treaties, and to the scope of its allocation of fish to treaty fishermen, the State and the commercial fishing associations have advanced two objections to various remedial orders entered by the District Court. The representations of the Attorney General are not binding on the courts and legislature of the State, although we assume they are authoritative within its executive branch.
Moreover, the State continues to argue that the District Court exceeded its authority when it assumed control of the fisheries in the State, and the commercial fishing groups Page U. Accordingly, although adherence to the Attorney General's representations by the executive, legislative, and judicial officials in the State would moot these two issues, a brief discussion should foreclose the possibility that they will not be respected.
State law prohibition against compliance with the District Court's decree cannot survive the command of the Supremacy Clause of the United States Constitution. It is also clear that Game and Fisheries, as parties to this litigation, may be ordered to prepare a set of rules that will implement the Court's interpretation of the rights of the parties even if state law withholds from them the power to do so. County School Board, U. Once again the answer to a question raised by this litigation is largely dictated by our Puyallup trilogy.
There, this Court mandated that state officers male precisely the same type of allocation of fish as the District Court ordered in this case. Whether Game and Fisheries may be ordered actually to promulgate regulations having effect as a matter of state law may well be doubtful.
But the District Court may prescind that problem by assuming direct supervision of the fisheries if state recalcitrance or state law barriers should be continued. It is therefore absurd to argue, as do the fishing associations, both that the state agencies may not be ordered to implement the decree and also that the District Court may not itself issue detailed remedial orders as a substitute for state supervision. The federal court unquestionably has the power to enter the various orders that state official and private parties have chosen to ignore and even to displace local enforcement of those orders if necessary to remedy the violations of federal law found by the court.
Charlotte-Mecklenburg Board of Education, U. Even if those orders may have been erroneous in some respects, all parties have an unequivocal obligation to obey them while they remain in effect. In short, we trust that the spirit of cooperation motivating the Attorney General's representation will be confirmed by the conduct of state officials.
But if it is not, the District Court has the power to undertake the necessary remedial steps and to enlist the aid of the appropriate federal law enforcement agents in carrying out those steps.
Moreover, the comments by the Court of Appeals strongly imply that it is prepared to uphold the use of stern measures to require respect for federal court orders. United States et al. InCongress established the Oregon Territory, 9 Stat. Inthe Washington Territory, which includes the present State of Washington, was organized out of the Oregon Territory. The parties to the treaties and to this litigation include these Indian tribes: During much of the return run, during which they pass through international, state, and Canadian waters, the fish are in optimum harvestable condition.
They were heavily dependent upon anadromous fish for their subsistence and for trade with other tribes and later with the settlers. Anadromous fish was the great staple of their diet and livelihood. They cured and dried large quantities for year-around use, both for themselves and for others through sale, trade, barter and employment. See also F. Fish was a basic element of the trade. There is some evidence that the volume of this intra-tribal trade was substantial, but it is not possible to compare it with the volume of present day commercial trading in salmon.
Such trading was, however, important to the Indians at the time of the treaties. In addition to potlatching, which is a system of exchange between communities in a social context often typified by competitive gifting, there was a considerable amount of outright sale and trade beyond the local community and sometimes over great distances. But if, at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson's confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty.
True, the jury in the first trial was permitted to deal with the issue of voluntariness, and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary, and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the state court, at an evidentiary hearing, redetermines the facts and decides that Jackson's confession was involuntary, there must be a new trial on guilt or innocence without the confession's being admitted in evidence.
We cannot assume that New York will not now afford Jackson a hearing that is consistent with the requirements of due process. Indeed, New York thought it was affording Jackson such a hearing, and not without support in the decisions of this Court, [ Footnote 23 ] when it submitted the issue of voluntariness to the same jury that adjudicated guilt.
It is both practical and desirable that, in cases to be tried hereafter, a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence.
But as to Jackson, who has already been convicted and now seeks collateral relief, we cannot say that the Constitution requires a new trial if, in a soundly conducted collateral proceeding, the confession which was admitted at the trial is fairly determined Page U. Accordingly, the judgment denying petitioner's writ of habeas corpus is reversed, and the case is remanded to the District Court to allow the State a reasonable time to afford Jackson a hearing or a new trial, failing which Jackson is entitled to his release.
If the judge finds that the confession is voluntary, he may admit it into evidence; if it appears the confession was not voluntary, he must not let the confession go before the jury.
See also State v. Van Vlack, 57 Idaho65 P.
Jackson v. Denno, 378 U.S. 368 (1964)
Dowell, 47 IdahoP. Andreason, 44 IdahoP. Nolan, 31 Idaho 71, Page U. State, 53 Ohio St. Powell, Ohio App. The only expression of the Wyoming court is found in Clay v.
The same difficulty of classification exists in the federal judicial circuits. The cases in which the New York practice is said to be followed are generally instances where the defendant declines to offer any evidence in a preliminary examination after the Government has shown the confession to be voluntary.
United States, F. Other opinions from the United States Courts of Appeals for the various circuits indicate that they follow the Massachusetts or orthodox procedure. See United States v. The Court of Appeals for the District of Columbia, however, does seem to sanction a variation of the New York practice, with the requirement that the judge hold a full preliminary hearing, at which the defendant may testify, outside the presence of the jury.
It is not clear what the trial judge must find before admitting the confession and submitting the issue of voluntariness to the jury. Although there apparently are no recent cases, the Court of Appeals for the Sixth Circuit appears to follow the New York practice. United States, 7 F. Although it appears that this issue was not seasonably tendered to the New York courts, exhaustion requirements were satisfied and the Federal District Court ruled on the merits of the issue, as our decision last Term in Fay v.
State procedural rules plainly must yield to this overriding federal policy. No one suggests that the petitioner, Jackson, "after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate bypassing of state procedures," the only ground for which relief may be denied in federal habeas corpus for failure to raise a federal constitutional claim in the state courts.
See also Johnson v. The confession reads in pertinent part as follows: Where did you meet the officer? What happened when you met him? I said, 'There was a fight upstairs. He insisted I go with him, so I got the best of him. How did you get the best of him? You threw him over? Where was your gun while you were giving him the Judo?
After you threw him to the ground, did you pull your gun? Where was the holster? After you threw him to the ground, what did you do about your gun? He went for his gun. What did you do?
Washington v. Fishing Vessel Assn. :: U.S. () :: Justia US Supreme Court Center
I got mine out first. Did you point the gun at him? What did you say to him? Told him not to be a hero. How many shots did you fire at the officer? Was it more than one? Who fired first, you or the police officer? I beat him to it. How many times did you fire at him? I don't know; twice probably. Did he go down? Did he fall down? I knew I was shot. While I was on the ground, he fired the gun. Could you tell us what time demerol was prescribed for him?
From our records, it was stated here. It was given at 3: Well, will that put you to sleep, demerol, Doctor? Well, it will make you --" "Q. It will make you dopey. And what was the other one, atropine --" "The Court: Atropine, what is that? Oh, it is not atropine.
What is that, Doctor?