OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF FISHERIES ‑- RULES AND REGULATIONS ‑- CONFLICT WITH PROVISIONS OF INDIAN TREATY ‑- EFFECT

OFFICES AND OFFICERS ‑- STATE ‑- DEPARTMENT OF FISHERIES ‑- RULES AND REGULATIONS ‑- CONFLICT WITH PROVISIONS OF INDIAN TREATY ‑- EFFECT.

Under a treaty entered into in 1855 by the United States government and the Yakima Indians, the Indians were given exclusive fishing right on rivers "running through or bordering said reservation."  A rule or regulation of the department of fisheries purporting to authorize fishing at such places, by nonmembers of the tribe, is invalid and must fall as being in conflict with the supremacy clause of the United States Constitution.

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                                                                   June 18, 1963

Honorable George C. Starlund
Director, Department of Fisheries
115 General Administration Building
Olympia, Washington

                                                                                                                Cite as:  AGO 63-64 No. 32

Dear Sir:

            You have asked the opinion of this office on a question which we paraphrase as follows:

            Do members of the Yakima Indian Tribe have the right to fish, to the exclusion of all others, in that portion of the Yakima River forming the boundary of the Yakima reservation?

            We answer your question in the affirmative.

                                                                     ANALYSIS

            The facts giving rise to your question may be outlined as follows:

            The department of fisheries General Order No. 256, § 84 (1) states:

            "It shall be unlawful to take, fish for or possess salmon taken for personal use in theYakima River and its tributaries upstream from a point 400 feet belowSunnyside Dam; provided, that it shall be lawful to angle for salmon below that point from May 15 through October 31."

            You question the department's power to promulgate such an order in  [[Orig. Op. Page 2]] view of the Treaty entered into by the United States and the Yakima Indians in 1855.

            On June 9, 1855, Isaac I. Stevens, Governor and Superintendent of Indian Affairs for the Territory of Washington made a treaty with several Indian tribes and bands, commonly referred to as the Treaty with the Yakima.  This treaty (12 Stat. at Large 951), was ratified on March 8, 1859, and promulgated April 18, 1859.

            Article II, § 2, of the United States Constitution gives the President power to make treaties.  The pertinent clause provides:

            "He shall have power, by and with the advice and consent of the senate, to make treaties, provided two-thirds of the senators present concur; . . ."

            Article VI of the United States Constitution, the supremacy clause, provides:

            "This Constitution, and the laws of the United States which shall be made in pursuance thereof; andall treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding."  (Emphasis supplied.)

            Treaties with Indians stand on the same footing as treaties with foreign nations and come within the ambit of Article VI of the United States Constitution.  See,Cherokee Tobacco v. United States, 11 Wall. 616 (1871); see, also, Article I, § 2, of the Constitution of the State of Washington.

            Thus it follows from the foregoing that a treaty of the United States is superior to a regulation of an agency of the State of Washington.

            The treaty, in Article 2, sets out the boundaries of the reservation created.  It makes the Yakima River a part of the eastern boundary, providing:

            "There is, however, reserved, from the lands above ceded for the use and occupation of the aforesaid confederated tribes and bands of Indians, the tract of land included within the following boundaries, to wit:  Commencing on the Yakima River, at the mouth of the Attah-nam River; thence westerly along  [[Orig. Op. Page 3]] said Attah-nam River to the forks; thence along the southern tributary to the Cascade Mountains; thence southerly along the main ridge of said mountains, passing south and east of Mount Adams, to the spur whence flows the waters of the Klickitat and Pisco Rivers; thence down said spur to the divide between the waters of said rivers; thence along said divide to the divide separating the waters of the Satass River from those flowing into the Columbia River; thence along said divide to the main Yakima, eight miles below the mouth of the Satass River; and thence up the Yakima River to the place of beginning."

            Certain fishing rights were reserved to the Yakimas in Article 3 of the treaty.  They include:

            "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 the citizens of the Territory, and of erecting temporary buildings for curing them; . . ."

            The question resolves itself into an interpretation of the meaning of the foregoing section of the treaty.  It is clear that the Yakima River forms a boundary of the reservation.  The treaty gives the Indians "The exclusive right of taking fish in all streams, where running through or bordering said reservation, . . ."  (Emphasis supplied.)

            The Yakima River borders the reservation at the place covered by the department of fisheries' regulation, the river is clearly within the "where" qualification of the foregoing.

            The word "exclusive" lends itself, in this context, to no interpretation.  As the United States Supreme Court said in Vicksburg v. Vicksburg Waterworks Co., 202 U.S. 453, 470 (1906):

            "The term 'exclusive' is so plain that little additional light can be gained by resort to the lexicons. . . ."

             [[Orig. Op. Page 4]]

            It is defined in Webster's New Twentieth Century Dictionary (Unabridged 1961 ed.), in part, as follows:

            "1. excluding all others; shutting out other considerations, happenings, existences, occupations, etc; . . .

            "2. having the tendency or power to exclude all others.

            "3. . .

            "4. not shared or divided; sole; single; as, an exclusive right to sell something.

            "5. excluding certain people or groups for social or economic reasons."

            Black's Law Dictionary (4th ed.) defines "exclusive" as:

            ". . . Shutting out; debarring from interference or participation; vested in one person alone. . . ."

            Black's defines "exclusive right" as:

            "An exclusive right is one which only the grantee thereof can exercise, and from which all others are prohibited or shut out."  CitingDowie v. City of Renton, 162 Wash. 181, 298 Pac. 454 (1931).

            See, also,U. S. v. Payne, 264 U.S. 446 (1924).

            The department, in its regulation, purports to allow fishing by others than members of the confederated tribes and bands with whom the treaty was made; in other words, it would establish a common rather than an exclusive fishery, as provided by the treaty.  It is clear from the treaty, that only members of such Indian tribes and bands may fish in that stretch of the river that forms a part of the reservation boundary.  And, in so far as the department of fisheries' regulation purports to allow a fishery in such places by nonmembers, it conflicts with Article III of the Treaty of 1855, and must fall by reason of the supremacy clause of the United States Constitution.

             [[Orig. Op. Page 5]]

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MIKE JOHNSTON
Assistant Attorney General