Antoine v. Washington – Oral Argument – December 16, 1974

Warren E. Burger:

We’ll hear arguments first this morning in 73-717, Antoine against the State of Washington.

Mr. Morisset, you may proceed whenever you are ready.

Mason D. Morisset:

Mr. Chief Justice, may it please the Court.

Antoine against State of Washington is here on appeal from the Supreme Court of the State of Washington.

It involves the hunting rights of the Confederated Tribes of the Colville Indian Reservation on the land which was sold by them to United States government in 1891, having been prior to that time, a part of their reservation as set aside by the President in 1872.

The facts are fairly simple.

Mr. Antoine and his wife Irene shot a deer, in the fall of 1971 on this land during a time in which hunting was closed by the laws of the State of Washington.

The Colville Confederated Tribes and Mr. Antoine are of the opinion that their rights to hunt on that land were guaranteed by the 1891 Sale Agreement as ratified by the Congress and that the State of Washington has no right to stop them from hunting there whatsoever, or in the alternative if some right is found, the State can do so only upon a prior showing of necessity for conservation.

Let me trace the chronology briefly of what happened on what we called the old north half of the Colville Reservation.

This was the aboriginal home of various tribes and bands which now make up the Confederated Colville Tribes.

There was no treaty signed with these groups and bands but finally in 1872, the President set aside approximately three million acres of land as a reservation.

This is the 1872 Executive Order.

Thereafter, the State of Washington, or what was then the territory of Washington was admitted to the union in 1889.

In 1891, the Congress formed a Commission to go and in the words of the act, meet and treat with the Indians to buy and purchase whatever land they might wish to sell.

An agreement was reached to sell the North half of the reservation.

Approximately, one and half million acres running up to the Canadian border between the Okanogan and Columbia Rivers.

That agreement was not immediately ratified by the Congress.

Rather in 1892, the Congress passed an act which unilaterally took the land back. Subsequently, the Indians agitated and lobbied for the ratification of their agreement and the payment of the money.

This was ultimately accomplished in 1906 by an Appropriation Act whereby the Congress to carry into effect the agreement, authorized the payment of money and thereafter, in subsequent appropriation acts, actually authorized the payment in $300,000 increment to the money.

Now 1872 then, finds the vesting of hunting and fishing rights in this land in question by the Federal Government.

It was an Indian Reservation with all the rights that go along with that, the right to exclude non-Indians from that land, the right to fish and hunt without control by the Territorial or State Government and all the many other rights which this Court knows attend a reservation status.

In 1891, the Indians agreed to surrender and relinquish all rights entitled to the land, but they reserved many rights.

They reserved, for example, allotments in this area and to this day, many members of the tribes still live on their allotments on this sold land.

They reserve the right to the use of the water and water courses attended to those allotments and they reserved, in Section 6 of the agreement, that the right to fish and hunt shall not be taken away or in any ways abridged.

Harry A. Blackmun:

Are those lands, Mr. Morisset, are they subject to taxation?

Mason D. Morisset:

The alloted lands are not, Your Honor.

They are trust land held by the United States.

Harry A. Blackmun:

State of Washington makes no point about -– they are just tax free?

Mason D. Morisset:

That’s correct.

Harry A. Blackmun:

No property taxes?

Mason D. Morisset:

That’s correct.

This incident however, did not occur on trust land, Your Honor.

I want to make that clear.

It did not occur on trust land.

William H. Rehnquist:

It occurred on what kind of land?

Mason D. Morisset:

As far as we know this is fee simple land, held probably by an individual.

None of the maps that I have seen and it was not submitted at trial, indicate who exactly owns the land.

It is open, not posted or fenced as far as we know.

It is not state land as far as I know, it is not Federal forest land.

William H. Rehnquist:

And is it, it’s the land on which the incident occurred subject to state taxation?

Mason D. Morisset:

It probably is, if it’s held by an individual in fee and I think we can assume that it is.

Harry A. Blackmun:

I take it your answer to my question about taxability is based on the trust land aspect rather than only agreement, which provided for tax exemption?

Mason D. Morisset:

That’s partially correct, Your Honor, but the agreement by setting up the allotments would be the document from which that non-taxability flows.

It was the agreement that said, the Indians may reserve some alloted lands on that north half.

But it is the status of the land itself, rather than the agreement that leads to the non-taxability, that’s true.

Warren E. Burger:

I am focusing on the land, where this hunting occurred, others people, others land members of this tribe permitted to hunt there?

Mason D. Morisset:

Non-Indians who are citizens to this state would certainly be allowed to hunt there, yes.

It is not a close area per se, it’s not posted or fenced off, or posted there is no hunting.

Warren E. Burger:

And there is no question about the States right to acquire licenses or any other restrictions with respect to others than members of —

Mason D. Morisset:

To non-Indians — that’s correct, Your Honor, no question about that.

William H. Rehnquist:

Mr. Morisset, during my brief tenure on the court I have heard the term alloted lands used in a number of arguments involving Indian cases, and I have tried to read and find out what they meant, I really don’t know what that term means, can you define it?

Mason D. Morisset:

Certainly, Your Honor.

The United States generally holds land as the fee simple owner for Indian Tribes.

Now that is the status of most reservations.

United States is the owner, it has the fee that’s held in trust for the Indian Tribe.

Now that land can be alloted to an individual, and the individual receives a patent allotments like a deed, you give it to them, the individual Indian has the rights of usage of the land, he has the right to devise it by will, and in the state of intestacy it would pass to his heirs under special federal statutes.

But the Indian does not have a right to mortgage or alienate that land without the permission of the Secretary of Interior because the Secretory as the government’s agent is the owner, he has the fee.

William H. Rehnquist:

And the record title then is in the United States —

Mason D. Morisset:

United States Government, a regular title report which show fee in the United States of America in trust for in either the tribe as a whole or an individual Indian, that’s the way the record agrees.

Potter Stewart:

And if it is an individual Indian then that means it’s an alloted land.

Mason D. Morisset:

That’s correct.

Potter Stewart:

Otherwise it’s an ordinary —

Mason D. Morisset:

Would be non alloted trust.

Potter Stewart:

— like another reservation.

Mason D. Morisset:

Right, non alloted trust.

Byron R. White:

Isn’t there is some cut-off date in the statue that wasn’t there or has it been indefinitely extended?

Mason D. Morisset:

There is a variety of allotments statute, the General Allotment Act had a cut-off date which has been constantly and consistently continued by Congress.

Byron R. White:

That (Inaudible) trust would end at sometime?

Mason D. Morisset:

And right, it was originally 25 years, it has been continued, I believe, in 25-year increments possibly more.

There is now several Allotment Acts and I —

Byron R. White:

Would this land under the General Allotment Act or special?

Mason D. Morisset:

This was under a Special Allotment Act, which flowed from the 1892 at the Congress, and the 1891 agreement.

Harry A. Blackmun:

Mr. Morisset, well we’ve to interrupt you.

Let me ask you another question or two, Mrs. Antoine was also convicted?

Mason D. Morisset:

That’s correct, Your Honor.

Harry A. Blackmun:

And She has a full blooded Indian?

Mason D. Morisset:

She is an Okanogan, yes.

Harry A. Blackmun:

But not a member, not an enrolled member of the tribe?

Mason D. Morisset:

Not enrolled in this country, no.

Harry A. Blackmun:

Do you raise any question about her conviction as such at all?

Mason D. Morisset:

I do not raise any question because the facts which don’t appear on the record, because they were not deemed to be material I believe are that she could be no more than an aider or an abettor and my position would be as a matter of criminal law, Mr. Antoine committed no crime, she couldn’t very well have aided and abetted him in such a known act and she was along for the ride, in other words.

Harry A. Blackmun:

There maybe something in the record as distinguished from the printed appendix, but I look at the findings on page 12 of the Appendix, the findings entered by Judge Tennis, the only place in those claims.

As I find a reference to Irene Antoine is in the title, all the way down through the rest of it, references only to Alexander Antoine, so I ask whether — what the situation is as to I read.

Mason D. Morisset:

Well that is the situation —

Harry A. Blackmun:

(Voice Overlap) this —

Mason D. Morisset:

I don’t want to answer the question but I suppose you could Your Honor.

My position is that she can’t have aided and abetted her husband, if he did nothing wrong, there is nothing wrong for her —

Harry A. Blackmun:

Well I find no findings or conclusions that in effect —

Mason D. Morisset:

That’s correct, Your Honor, there is no more —

Harry A. Blackmun:

— find her guilty —

Mason D. Morisset:

There are no more findings on the record that have been other than printed in the Appendix as to her, to Mrs. Antoine.

Warren E. Burger:

Well —

Harry A. Blackmun:

You are making no point to this?

Mason D. Morisset:

No.

Harry A. Blackmun:

Why?

Warren E. Burger:

More specifically, finding four refers to defendant Alexander Antoine in conclusion of Law 2 and 3 speak of defendant in the singular.

I should think, you might well make your point of it.

Mason D. Morisset:

Ah —

Harry A. Blackmun:

This, of course, is my point throughout.

I find no reference whatsoever to I read and I am curious is to why you haven’t treated this as a point of deficiency in the judgment of conviction?

Mason D. Morisset:

Well as, I think in here is deficiency but I think that more central, more important point is that Alex Antoine committed no crime and when his conviction falls, Mrs. Antoine will of necessity falls.

She could not have done anything other than to be along what if —

Harry A. Blackmun:

But if you do that, she is stuck if you don’t raise the secondary point —

Mason D. Morisset:

That’s correct.

William H. Rehnquist:

Well then your questions presented on page four of the jurisdictional statement, you certainly didn’t raise any question like that, did you and that’s all that’s before the court.

Mason D. Morisset:

That’s correct, Your Honor.

Harry A. Blackmun:

In any event, my question shall be regarded as to state counsel and perhaps he can explain it?

Warren E. Burger:

Before you leave the question of these alloted lands that Mr. Justice Rehnquist was puzzled about, when the land is alloted, will you clarify for me, is that alloted the way a conveyance of the farm land, piece of farm land is alloted by meats and bounds description or other specific description?

Mason D. Morisset:

Now that’s — that’s a difficult fact question because it differs from reservation to reservation.

But in most cases, the Bureau of Indian Affairs or in the early years, the war department carried out some kind of survey and many of these reservation lands have government, special government plats.

They don’t exist in the archive, because I have tried to dig them up and they will be alloted by a lot number and they will have an allotment number 141, and you have to go to an original government plat to find, what that means and sometimes, that will be a map or it will be meats and bounds and in some occasion, it differs greatly.

Now I was –- I believe discussing the 1891 agreement and noting that the Indians had to lobby for sometime before the agreement was carried into effect, approximatively 15 years.

In 1906, the Congress did ratify the agreement, appropriate the money to carried into effect and the money was gradually paid out over the years.

Now the affected agreement to these appellants that their hunting and fishing rights are guaranteed by Supreme Federal Law.

The State seems to argue that this agreement is not Supreme Federal Law, and the State Court in Washington, seemed to hold that.

I find no support for that in any of the learning and teachings of this Court.

Certainly the Congress has plenary power over Indian Tribes and has exercised that power through the years.

Certainly at the time, that the promise was made, this was Federal land.

In fact, the whole area was a territory, the whole area was federal land and the particular area in question, the North half of the reservation was even more federal than the whole territory, if that’s possible because it was an Indian Reservation and the Federal government had full authority and control over that land as trustee for the Indians.

So the two owners of the land; the government as the fee owner, and the Indians as the beneficial owner, agreed as to how it would be sold and what the terms would be and the Federal Government promised that hunting and fishing rights would continue.

Mason D. Morisset:

Now the Federal Government has done this before, in other cases that have come before this Court.

Dick versus U.S. for example, involved the sale of land by a tribe of their reservation back to the government and the government agreed in the document, that Federal Liquor Laws would continue to apply not withstanding incorporation of those areas into the State thereafter and this Court held that of course, the Federal Government could do that.

It could take land back from the Indians and apply conditions to it.

Our position then is that the Indians and the Federal Government agreed as to what the terms would be of ceding the land back to the United States Government.

And that the State of Washington had to take whatever power or jurisdiction or authority they have over that land, subject to outstanding Federal promises, just as same as when they became a State in 1889, most of the land at that time was tied up in some sort of Federal ownership.

Now, getting to the words of the agreement itself, as ratified by the Congress, it’s our position that the words shall not be taken away or in anywise be abridged mean that the State has no authority whatsoever to regulate Indian hunting and fishing on that north half.

They took or became a state, subject to the outstanding promise of the Federal Government, and it is for the Federal Government and the Indians to decide how hunting and fishing rights will be exercised.

We believe that this case is unlike the Puyallup litigation that this Court has had to struggle with, as had the State courts in Washington for many years now.

Unlike it because the words of the agreement read as an absolute promise, they are much stronger in the Steven’s Treaties.

This Court has had to struggle with the Steven’s Treaties which promised the right to hunt and fish in common with other citizens of the territory, and that’s all the treaty say.

In this situation, the Federal Agreement, the Supreme Law of the land says the right to hunt and fish in common with other citizens of the United States, shall not be taken away or in anywise abridged.

We feel it is an abridgment, an impairment and aggregation of those rights if the State is allowed any jurisdiction or authority whatsoever to regulate Indian hunting and fishing.

We believe that a holding would be consistent through this Court’s teaching as to the need for Indian Tribes to govern themselves.

This Court has held that hunting and fishing rights are a Tribal right to be exercised by the individual Indians and we believe that the Colville Confederated Tribes can and will regulate this tribal right.

William J. Brennan, Jr.:

I gather you have to be a member of the tribe, an enrolled member?

Mason D. Morisset:

That’s correct.

William J. Brennan, Jr.:

I notice, as the wife in discussing with Mr. Justice Blackmun, you have a footnote in the jurisdictional statement that she is an Indian but not an enrolled member of the Tribe.

Mason D. Morisset:

That’s correct.

William J. Brennan, Jr.:

Well, how does that place your position as to —

Mason D. Morisset:

Our position on that would be the same as it is been in fishing litigation in the State of Washington.

The spouse as immediate families should be allowed to participate at least as helpers in the right.

William J. Brennan, Jr.:

Do you mean they have the benefit of the reservation, will they?

Mason D. Morisset:

Yeah the reservation of hunting rights.

It really makes no practical sense to say that an Indian has a hunting right which you can go and slap his wife in jail and she accompanies him or if he catches the fish and takes it home to feed his wife and children who may not —

William J. Brennan, Jr.:

Suppose she were hunting on her own?

Mason D. Morisset:

I still think that the spouse should be allowed to exercise the right.

It is not practical in the sense of Indian life to not allow the immediate family, the spouse and children to participate —

William J. Brennan, Jr.:

Well what’s the law it had been where the reservation apply?

Mason D. Morisset:

There is been no holding by this Court.

William J. Brennan, Jr.:

How about the Washington courts?

Mason D. Morisset:

The only holding that I know of is the holding of Judge Bolt in US v. Washington in which he held that, I don’t know if he held in the original decision or subsequently that the spouses should be allowed to participate in the treaty right in that case.

Our position here is basically the same.

The spouse should definitely be allowed to participate, that’s a purely policy argument.

It makes sense in terms of what — how Indian tribes operate, how Indian families operate, how they go together to get their food and so on.

No particular strict reason in the law why that should be, but there is a reason in equity.

Now why don’t we want any state power here?

We feel that state regulation of Indian hunting and fishing rights, is and always has been a complicated procedure of allocating the resource to user groups.

Complicated procedure involving political pressure, complicated procedure involving many competing groups in which the Indian interest get kind of left to the floor, left to the bottom of the heap.

We further feel that is an impairment of tribal government.

This is a tribal right guaranteed by Federal law, but the tribe has nothing to say about it.

It can’t take care of the resource, it can’t allocate the resource to its members.

It can’t have any kind of lottery system or permit system to allow the deer in this case to go to the most useful place.

William H. Rehnquist:

But it’s not on tribal land, is it?

Mason D. Morisset:

No, but it’s a tribal right, it’s a tribal right as is all of reservation, usual and accustomed hunting or fishing rights.

So, tribal resource, it seems to me Your Honor, just as important as the land that’s on the reservation.

This is a resource.

It is a right, property right if you want to call it that of the tribe, something they should be allowed to control for their members and Judge Bolt in Washington has so held, that the Indian tribes can regulate that right and the Ninth Circuit has just recently held about two weeks ago, that the Indian tribe should have the right to regulate hunting and fishing not on the reservation, but in areas that are unusual and custom places and we agree with those decisions, I think they make good sense.

They allow the tribes to take care of their own, to care of what rights are their’s under Federal law.

William H. Rehnquist:

But I think, that non-Indians could hunt in the same area consistently with the treaty, couldn’t they?

Mason D. Morisset:

Subject to State Law, yes.

William H. Rehnquist:

So the non-Indians.

Potter Stewart:

(Inaudible) was it?

Mason D. Morisset:

No.

Potter Stewart:

This isn’t a treaty.

Mason D. Morisset:

No, no.

Potter Stewart:

There were no treaties after 1871, that was sale.

William H. Rehnquist:

A sale.

Mason D. Morisset:

Act of Congress.

William H. Rehnquist:

Well, the Act of Congress simply appropriated money, didn’t it?

Mason D. Morisset:

Yeah and ratified the agreement of 1891.

William H. Rehnquist:

In hike variable?

Mason D. Morisset:

Yes.

William H. Rehnquist:

In intern?

Harry A. Blackmun:

Now, this is the first time you have made reference to ratification and you are relying on that?

Mason D. Morisset:

Yes, well —

Harry A. Blackmun:

But before you made the reference only to the appropriations?

Mason D. Morisset:

I thought, I said, my only remarks that it was ratified in 1906 by any Appropriation Act, I believe I made that statement.

I want to make it clear however, that these rights, these Hunting and Fishing Rights attached, when the reservation was established, and it has been the teaching of this court that such rights do not fly away or disappear by implication, by some strange metaphysical happening in an Act of Congress and the only Act of Congress or only action of Congress which refers to the rights at all is the 1891 agreement and that could be — and of course, preserves the rights, it does not take them away.

The 1892 Act makes no mention of the rights whatsoever and I believe it’s the teaching in this court in Menomonie, for example, that if no mention are made of hunting and fishing rights, which are vested in a tribe and then they are not impaired or abrogated or taken away and that’s a good teaching and I would hope that we could stand by that.

So, our position to summarize is that the promise absolute in its terms, does not gives the State any power or control whatsoever.

In the alternative, arguendo, if there is any State power following a Puyallup kind of reasoning, that the State has some authority to regulate as necessary for conservation, and I want to make it clear we don’t accept that in this case, nevertheless, they have made no case for conservation.

They have done none of the steps that the trial courts which have had to try to implement your decisions in Puyallup to come up with, such as looking into the regulation ahead of time, considering the Indian needs as a special need and making special provision for them.

The State has done nothing of that kind in this case and I think, it would be clear that, this particular regulation which Alexander Antoine is considered to have violated was not done as necessary for conservation as that term has come to me in terms of Indian rights, but was done as a total State political allocation regulation.

I wish to reserve the rest of my time Mr. Chief Justice for rebuttal.

Warren E. Burger:

Very well Mr. Morisset.

Mr. Coniff.

Joseph Lawrence Coniff, Jr.:

Mr. Chief Justice and members of the Court.

I wish to first advice the Court that I am appearing here today of behalf of the prosecuting attorney of Ferry County in as much as Mr. Morrisset and I tried the case, I was appointed as a Special Deputy Prosecuting Attorney to handle the matter.

There was a question raised by Justice Blackmun I believe, regarding the status of Mrs. Irene Antoine and I think it should be pointed out to the Court that the trial of the case, as is reflected in the statement of facts, Page 5, that only Mr. Alexander Antoine was present at the trial.

Now the findings, the argument and the findings referred to by Justice Blackmun were therefore indicate that Mrs. Antoine is not a party to the case.

I cannot comment upon the reasons why she has been added in this appeal and as much as the appellants have done so.

Warren E. Burger:

Well, perhaps because if she was referred to in the judgment that followed the findings of the facts and conclusions involved?

Joseph Lawrence Coniff, Jr.:

Yes, I presume so.

I did not prepare the judgment, you will note the prosecuting attorney prepared the judgment and I was simply sent a copy and I was unaware until the court had signed the order.

William J. Brennan, Jr.:

Well, Mr. Coniff, if he could not be prosecuted, could she not a member of the — not enrolled member of the tribe?

Joseph Lawrence Coniff, Jr.:

In my opinion a non-enrolled member of an Indian tribe, in this particular case, a Canadian Indian is fully amenable to state law in exactly the same way as any other non-member or non-Indian might be.

William J. Brennan, Jr.:

So, that the reversal here, is a little one, would not mean that she would be — the affirmance here would not mean necessary that she couldn’t be prosecuted?

Joseph Lawrence Coniff, Jr.:

I believe that it would logically follow assuming her status is as is stated in the United States’ Memorandum as amicus curiae, that is a non-enrolled member or a native Indian —

William J. Brennan, Jr.:

Well, that’s stated too in her jurisdictional statement?

Joseph Lawrence Coniff, Jr.:

Yes.

William J. Brennan, Jr.:

She is not non-enrolled —

Byron R. White:

But were the charges filed against her?

Joseph Lawrence Coniff, Jr.:

The original charges were filed against both Mr. and Mrs. Antoine.

Byron R. White:

What did they allege about her?

Joseph Lawrence Coniff, Jr.:

That she was aiding and abetting in the — there were originally two charges filed, one was dismissed by stipulation.

Byron R. White:

Well, so really, they would have to prosecute her, file another charge if they wanted to prosecute her because she was charged as an aider and abettor?

Joseph Lawrence Coniff, Jr.:

Yes and in as much as these matters are misdemeanors under the laws of the State of Washington, the statute limitations would have run. So, as a matter of reality there would be —

Byron R. White:

So if she is found — if he is found — if he wins here, she is out of trouble?

Joseph Lawrence Coniff, Jr.:

She is out of trouble as far as I can say, because of the statute of limitations in any event.

Harry A. Blackmun:

But, if he doesn’t win here, what happens to her?

Joseph Lawrence Coniff, Jr.:

If he does not win here?

As far as I can see that she is not proper — she was not present in the judgment entered by the lower court, could be reopened I believe on that ground.

However again, and I would iterate that I did not prepare or enter the judgment which is found in the Appendix.

Harry A. Blackmun:

Well, I take it from your remarks that you are doubtful on the part of the state as to the integrity of this judgment against her?

Joseph Lawrence Coniff, Jr.:

As to Mrs. Antoine, yes.

Harry A. Blackmun:

This judgment anyway.

Joseph Lawrence Coniff, Jr.:

Yes, because the statement of facts does reflect that she was not present at the trial.

Warren E. Burger:

That would be — this record would suggest at least the possibility that that’s a jurisdictional matter and that whether it was raised or not the court could take notice of the absence of jurisdiction over her, could they not?

Joseph Lawrence Coniff, Jr.:

Yes, I would submit that may would be the case Mr. Chief Justice.

I would like to —

William H. Rehnquist:

Do you think it is a matter of state law?

Joseph Lawrence Coniff, Jr.:

With regard to the — my respondent.

William H. Rehnquist:

With regard to Mrs. Antoine?

Joseph Lawrence Coniff, Jr.:

With regard to the statute of limitations?

William H. Rehnquist:

Yes, well also with regard to the effect of the judgment honor and with respect to whether she have to be re-prosecuted as an aider and abettor?

Joseph Lawrence Coniff, Jr.:

Yes, first I of all, I would question the jurisdiction of the trial court in the first instance to enter any sort of a judgment and sentence upon an individual who was not present.

The appropriate remedy would be under those circumstances I believe to issue bench warrant in the event that the person did not appear for trial.

Unless her attorney might have waived her presence as is reflected apparently by stipulation of Mr. Morisset and the local prosecuting attorney Granville Egan.

I was not again, I am somewhat handicapped on these detailed questions with regard to the entry of the judgment sentence and as much as I was not present at that time and did not draft them.

Harry A. Blackmun:

In any event I take that you are — you share my concern anyway about the integrity of the judgment against her and almost concede that so far as she is concerned the reversal is indicated.

Joseph Lawrence Coniff, Jr.:

In as much as the court in the first instance might well lack jurisdiction because of her failure to have appeared in the case.

William H. Rehnquist:

Well you are also here, are you not, to defend the judgments that have been entered by the Supreme Court of Washington which affirmed the judgment of conviction against her?

Joseph Lawrence Coniff, Jr.:

Yes.

William H. Rehnquist:

I mean, you can leave it to the other side presumably to attack the judgment.

Joseph Lawrence Coniff, Jr.:

Yes, I would presume that would be true.

However, I was of the impression that Justice Blackmun wanted to have whatever information my comments, and whatever information was available from the record directed his attention.

And it was for that reason that I shifted gears so to speak and attempted to address myself to that problem.

Thurgood Marshall:

Was this one argued to the Supreme Court of Washington?

Joseph Lawrence Coniff, Jr.:

The status of Mrs. Antoine?

No, it was not.

Thurgood Marshall:

So, it didn’t pass on it, did they?

Joseph Lawrence Coniff, Jr.:

No, they did not Your Honor.

Thurgood Marshall:

This is unbelievable.

There is a conviction in absentia approved by the court, approved by the Supreme Court, and brought here and (Inaudible)

Joseph Lawrence Coniff, Jr.:

The appellants did not raise the question, and did not, it was not argued by appellants and I believe that counsel for appellants has so indicated.

I am simply trying be candid with the Court and advise the Court of the exact record that is before it.

I would point out in further response to the question of Justice Marshall, that in the single Appendix printed by Appellants, page 16 wherein the findings are set forth that it’s recited that each defendant personally, their attorney Mason D. Morisset and the Assistant Attorney General and the Prosecuting Attorney all have stipulated and so forth, that the sentence was of the District Court, the lower court below the Superior Court was reasonable and so forth.

Alright, I am not sure that.

adds or subtracts to her absence at the trial.

I would like to emphasize to the Court, as has been referred to by Mr. Morisset, that the status of the lands upon which the arrest occurs, with that of non-alloted lands, they were not Indian lands, they were in non-Indian ownership.

They are fully subject to State taxation and even if the owner of those lands would engage in the activity of hunting, he would required to possess a state hunting license.

So, as I understand —

Potter Stewart:

This isn’t an unlicensed hunting, it’s a hunting out of season?

Joseph Lawrence Coniff, Jr.:

Yes that is correct, and the owner of the land would likewise have to comply with that hunting season regulation which was promulgated by the Game Commission of the State of Washington pursuant to statutory delegation by the legislature.

The first point that I believe should be briefly discussed involves the 1871 statute prohibiting the execution of further treaties.

And in light of this statute, I believe that the Court must examine very carefully the legal consequences which might arguably flow from the 1891 agreement with the tribes and bands of Colville Indian Reservation.

I would first point out to the Court, that as pointed out by the court below, that a plausible interpretation of the exact language before the court in Articles 1, 5, 6 of the 1891 agreement is that, Article 6 was intended to secure to the Indian allottees in the Northern half, the rights to go upon the Indian Reservation and hunt in common with the Indians on the diminished or South half of the reservation.

This is further borne out by the exact language used by the Commissioners who represented the United States when entering into these negotiations in Article 1, whereby the Indians “do hereby surrender and relinquish to the United States all their right, titles, claim and interest in and to and over the following described tract of land.

Secondly, as pointed out in the briefs filed by the United States as amicus curiae, and in the statutes pointed out by the Appellants in their briefs, there is no showing in this record that the Commissioners of the United States had any authority to enter into a treaty or even that, that was what they intended to accomplish.

Rather it would — the statute authorizing the Commissioners to enter into these negotiations indicate that their purpose was to acquire the land.

Joseph Lawrence Coniff, Jr.:

So, that it might be open for public settlement.

This matter was further brought to the attention of Congress as is pointed out in the memorandums, which ultimately culminated in the 1892 statute, which is found at 27 Statutes at large page 62 and following.

It is the State’s position that the 1892 Statute confers jurisdiction upon the state and that it expressly purports to do so.

In this connection, I would further point out to the Court that the legislative history surrounding the enactment of the 1892 statue, clearly demonstrates that Congress had before it the precise question of whether or not to ratify the 1891 Agreement.

In fact, the House of Representatives did so.

The Senate did not concur and the matter finally culminated in the exact language of the 1892 Statue, which because the critical nature of the state’s position on the reliance upon the statute, I would like to just very briefly read the precise language employed by Congress, remembering that the proposed inclusion of a reservation of fishing and hunting rights, the House version was rejected by the Senate in favor of this language which finally did pass Congress.

The statute provides that the northern half be and is hereby, vacated and restored to the public domain, notwithstanding any executive order or other proceeding whereby the same was set apart as a reservation for any Indians or bands of Indians and the same shall be open to settlement and entry by proclamation of the President of the United States and shall be disposed of under the general laws applicable to the disposition of public lands in the State of Washington.

William H. Rehnquist:

Where in the brief or records is that passage that you are reading from?

Joseph Lawrence Coniff, Jr.:

I am reading from page 12 of the brief of Appellee, the blue brief.

Potter Stewart:

The chronology as I understand it was this agreement in the 1891 and then legislation in 1892 which almost rejected the agreement implicitly so, at least, one House of Congress thought that the land hasn’t been the Indians to sell.

And then a 15-year lobbying effort by the Indians culminating in the legislation of 1906, is that it?

Joseph Lawrence Coniff, Jr.:

That is my understanding of —

Potter Stewart:

1891 agreement, 1892 legislation which was inconsistent with the agreement and then 1906 law that was consistent with the agreement and purported to be ratified.

Joseph Lawrence Coniff, Jr.:

A caveat on purported to ratify, which leads to the next leg of my argument.

It is — even if we assume that the 1871 statute is to be given no effect, which of course we do not agree with that —

Potter Stewart:

That is the 1871 statute — ?

Joseph Lawrence Coniff, Jr.:

— prohibiting, saying further, saying no more Treaties and if we assume for purposes of argument that the Commissioners who executed the Treaties purported to execute a treaty, the question is, whether or not, under the Constitution of the United States Article 2, Section 2, Clause 2 which requires rectification by two-thirds of the Senators present, whether or not in fact there was a ratification legally and constitutionally of the 1891 agreement

Potter Stewart:

Well, an agreement needs to be a treaty.

The government can make an agreement with you, it’s not a treaty, it’s vis-a-vis your land?

Joseph Lawrence Coniff, Jr.:

That is correct.

Potter Stewart:

And in that agreement for the purchase of your land it can give you certain remaining rights in it, like the right to hunt or fish, even though it may well belong to the government.

It’s not a treaty.

It’s just to, that’s just the purchase.

Joseph Lawrence Coniff, Jr.:

It could be a reason — I think we must be careful to distinguish between the question of dealing with the police powers of the state, the State of Washington being admitted into the Union in 1889, and presumably coming in to the union on any equal footing with the sister states and to distinguish between the Rights of Government or reserved police power, if you will, the right to regulate the hunting activities over the land in question and the right in this nature of an easement, the right to go upon others land and hunt, does not deal with the subject matter of the right of the state to govern or the right of the state to apply the laws in question to the Indians in the extinguished Northern half.

William H. Rehnquist:

I suppose your position would be that if the government after Washington had attained statehood had allowed homesteading of certain land that in owned and/or would ultimately passage into private hands through a patent that the Federal Government couldn’t have accompanied that pattern by a guaranteed to the homesteader that they would never be the subject to police power at the state of Washington?

Joseph Lawrence Coniff, Jr.:

That is correct Mr. Justice Rehnquist, that is my position.

I would further, in support, I am on this subject generally of ratification Mr. Justice Stewart, I’d like to further respond to your queries by pointing out that the precise language employed by Congress in the 1906 Appropriation Act itself states that it’s purpose was to authorize payment to the Indians in order to carry into effect the agreement of 1891.

And the exact language employed by Congress I would submit, would support the conclusion that it was Congressional, that it demonstrates Congressional intentions simply to pay for the lands acquired

I’d further submit that the language cited by the Federal governing in their amicus brief, the comments of Justice Fullerton, former Chief Justice of the Supreme Court of the State of Washington, who was one of the commissioners who dealt with the Colville Indians, dealt solely with the question of obtaining compensation from Congress for the payment, for the taking, if you will, or the opening of these northern half lands.

It is our position that the any — the the subsequent 1906 and following appropriation acts which are set forth in our memorandum, our brief, do not purport to ratify in the Constitutional sense of ratification, in the 1891 agreement.

Joseph Lawrence Coniff, Jr.:

That it is our position that similar to the position interestingly taken by the Department of Interior, when these matters were called to Congress’ attention in 1906 that the Indian simply had a — that Indian’s did have a possessory right to the northern half and that they should be compensated for it.

The reason apparently, that Congress was dragging it’s feet was that they weren’t sure as to whether the Indians even had a possessory interest in the northern half of the reservation due to the fact it was created pursuing to an executive order and not pursuing to treaty.

Potter Stewart:

That’s what divided the two, it had divided the two house of Congress by 1992.

Joseph Lawrence Coniff, Jr.:

Yes, the reading of the legislative history in that regard would seem to me it lead to that conclusion.

I would further point out that the 1892 statute which ceded jurisdiction clearly, in our view to the State of Washington, has never been modified or repealed.

And in this connection I would point out that the Constitution of United States, Article 1, Section 8, Clause 16, provides that the jurisdiction of a State, once acquired can only be retroceded with a consent of the State Legislature.

And there is not showing in this record and in fact the legislature has not in — purported to retrocede to the Federal Government jurisdiction over the northern half.

In fact, what appellants seem to be arguing is that the State should be deprived of the jurisdiction which it acquired in 1892, by implication from an agreement executed for the purchase of the lands with the Indian tribes in 1891.

We would submit that a State should not be deprived of it’s jurisdiction to it’s to enforce it’s laws upon all citizens equally, upon the lands in question i.e. the former northern half, upon such a showing.

The prior decisions of this Court appear to be quite uniform in articulating this rationale.

I would further point out that the suggestion which is made in both the Federal Government amicus brief and in the brief of appellants, that Public Law 280, somehow comes into play, in this case is spurious.

Potter Stewart:

What comes into?

Joseph Lawrence Coniff, Jr.:

Public Law 280, which is the state’s assumption of jurisdiction over Indian reservations, it was enacted by Congress in 1953, became effective in August, 1953.

Our position simply is that Public Law 280 does not apply because, “the northern half was not an Indian reservation” as of the date of it’s enactment.

Therefore by it’s terms, it does not apply to the northern, the extinguished northern half of the Colville Indian reservation.

And therefore the Menominee decision of this Court, the companion case to Puyallup I simply does not apply.

Menominee of course dealt with the express termination of a treaty tribe and of course the situation is dramatically different here.

Where in other words, the Indian country concept in this opinion written by Justice Douglas, the Indian country concept was clearly set forth that the lands must occupy their unique status as Indian county and Indian reservation in order at the time of the enactment of Public Law 280 in order for it’s terms to be applicable and the Court in the unanimous opinion was very careful to make that distinction.

I’d like to further point out that in subsequent Congressional treatment of the northern half, the extinguished northern half of the Colville Indian Reservation has uniformly dealt with it, as if it were extinguished, the precise Congressional statutes are set forth in our memorandum.

This subsequent Congressional treatment is reflected in several opinions of this Court.

I’d specifically refer to Court to United States versus Pelican which is found in 232 U.S and I am reading at page 446, a very short sentence which I believe is on this point.

In dealing with the question of the northern half, the evident purpose of Congress was to carve out, of the portion of the reservation restored to the public domain, the lands to be alloted and reserved as stated and to make the restoration effective only as to the, the vacation and restoration which the statute accomplished Section 1, was thus so forth made subject to the reservation and allotments of land in severalty.

Now, as I have mentioned the stipulated facts, facts that were stipulated by Mr. Morisset and I at the original trial of this matter in Republic Washington indicate that the offense occurred on non allotted, non-Indian lands.

So, that we are not dealing with an allotment remaining in the northern half in this case.

Warren E. Burger:

What was the provision of the federal constitution, you referred to, which you said that limited right of Congress to impair any right of the State after 1889?

Joseph Lawrence Coniff, Jr.:

With regard to the jurisdictional argument was Article 1, Section 8, Clause 16, and I submit to the Court that the decisions of this Court and construing this constitutional provision, make it clear that once a jurisdiction of a state vests or is acquired, that it can may only be retroceded to the United States with the express concern of the State Legislature.

The case is referred to are James versus Travis Construction Company, Fort Leavenworth Railway versus Lowe, both which are cited in the brief of appellants.

There are two other decisions of this Court subsequent to Pelican decision which expressly recognized the diminishment, if you will, and the extinguishment of the Northern half and the diminishment of the size of the Colville Indian Reservation to it’s present size which is approximately one-half of it’s original size.

As the Court is aware the original boundaries extended to the 49th parallel, bounded with the nation of Canada.

This is by the way reflected by state’s exhibit number one, a copy of which is in the record and was provided and is available for the court’s inspection.

Joseph Lawrence Coniff, Jr.:

State’s exhibit number one likewise by a Red X locates the precise location of the offense as being a non-Indian, non allotted lands again and not within the boundaries of a National Forest.

Potter Stewart:

Privately owned by a non-Indian presumably, is that right?

Joseph Lawrence Coniff, Jr.:

Yes, it is.

It is privately owned, non allotted, non-Indian land and the map, state’s exhibit number indicates that the locus delicti is not within the boundaries of a National Forest.

Now, I have gone a little further than that as the Court is aware in terms of the motion to strike and further reply brief to this new issue which was interjected three or four weeks ago when I received a copy of the federal government’s brief as a amicus.

This is might logic, if I get respond just very briefly to their argument.

Their position appears to be that to the extent that the extinguished northern half is a National Forest, that the Indians at least have this much room or this much at least free from any state jurisdiction or state authority to apply the hunting laws in the question and I would submit that this position is erroneous for several reasons.

First of all as I have previously indicated the locus delicti is not within National Forest boundaries.

Secondly, the establishment of National Forest occurred after the acceptance of jurisdiction, by the State.

It’s pointed out, that Colville National Forest was established by presidential proclamation in 1907, and further the statutes by which the National Forest of the United States are established are set forth in page 3 of the Orange Reply Brief indicate that the jurisdiction, both civil and criminal over persons within such National Forests shall not be affected or changed by reason of the existence of such reservations and so on.

It says that the State or in any such National Forest situated shall not, by reason of the establishment thereof, lose it’s jurisdiction nor the inhabitants thereof their rights and privileges as citizens of the State.

This is as presently quantified in 16 USC 480 and has been construed definitively by this Court in Wilson versus Cook, which is set forth in the brief.

The Federal Government likewise appears to argue and as do the appellants that somehow the Indians were nearby a National Forest and were somehow acting pursuant to some sort of federal statutory authority enjoyed by representatives of the Department of Interior or the National Forest Service.

The case authority cited in support for this proposition in our view does not apply to the case at bar.

We do not have a situation present in this case as was presented to this Court in Hunt versus United States, wherein federal officials were killing deer, contrary to the State Law where there was showing that the deer were in fact, doing damage to publicly owned lands, in that case, a National Park.

There is no showing —

William J. Brennan, Jr.:

You referred us to Article 1, Section 8, you say Clause 16?

Joseph Lawrence Coniff, Jr.:

Yes.

William J. Brennan, Jr.:

Is that the one on organizing arming and disbanding the militia?

Joseph Lawrence Coniff, Jr.:

No I am sorry, I have the wrong.

No, it’s at the end of that clause.

William J. Brennan, Jr.:

Authority of training the militia, according to (Inaudible) described by the Congress.

Joseph Lawrence Coniff, Jr.:

The Clause 17, Your Honor.

I am sorry.

William J. Brennan, Jr.:

You mean, the last purchase by the concerned or legislature, the State was the same shall be relating to the Fords Magazines, arsenals etc?

Joseph Lawrence Coniff, Jr.:

Yes, that is the clause.

I am sorry, I don’t know how my handwritten notes got the wrong clause.

It’s Article 1, Section 8, Clause 17, as construed by the Court in the cases as I have indicated.

Warren E. Burger:

They aren’t numbered so it makes it a little difficult sometimes.

Joseph Lawrence Coniff, Jr.:

Yes, I am very sorry for that.

Joseph Lawrence Coniff, Jr.:

Thank you for calling it to my attention.

So in sum, the facts of this case indicate clearly that the Indians were not acting here as a agents of the Federal Government, nor that their activities in killing the deer out of season were necessary for the protection of government property lying either within or in this case, without the boundaries of a National Forest.

I believe that’s a spurious issue which was interjected at a very late date in this proceeding by the amicus brief of the United States.

Potter Stewart:

Had that subjected on the just in a little Footnote 7 of their brief, it’s unencrypted form (Inaudible)

Joseph Lawrence Coniff, Jr.:

Yes it is Your Honor.

Potter Stewart:

I really don’t understand that you are making the argument.

Joseph Lawrence Coniff, Jr.:

Yes.

Finally I just to summarize, I would like to further point out to this Court, subsequent to the Pelican decision in Seymour versus Superintendent, has expressly recognized the legal effect of the 1892 statute, I referred to with the following language, I am reading from 368 US at page 354.

In 1892, the size of this reservation was diminished when Congress passed an act providing that subject to reservations and allotments made to individual Colville Indians about one-half of the original Colville in reservation since commonly referred to as the north half should be vacated and restored to the public domain.

The Court goes on to observe that this act didn’t however, purport to effect the status of the remaining part of the reservation since known as the south half.

Finally, in this same vein, I’d like to refer to Mattz versus Arnett decision which was written by Justice Blackmun in October term 1972.

We read from page, very briefly from page 412 US at page 504, Footnote 22.

Here the Court unanimously was reaching a conclusion with that the Hupa and Yurok Indians of California, that their reservations in the Court are along the river between the two have never been expressly dealt with or terminated by Congress.

And in reaching this conclusion the Court contrasted, made the point that where Congress desired to specifically extinguish or to terminate an Indian reservation it clearly was capable of doing so with express language.

And in support of that proposition the Court states unanimously that Congress has used clear language of express termination when that result is desired.

See for example.

27 Stat 63 1892; the 1892 statute adopted just two weeks after the 1892 with which this case is concerned, providing that the north half of the Colville Indian Reservation “the same being a portion of the Colville Indian Reservation B, and is hereby vacated and restored to the public domain and citing with approval the Seymour versus Superintendent decision.”

Warren E. Burger:

Your time has expired now Mr. Coniff.

Joseph Lawrence Coniff, Jr.:

Thank you.

Harry A. Blackmun:

(Inaudible) and if you look at the index, don’t do it now, but in the index page references, I think without exception are all wrong.

So that the index as far as I am concerned and the tables of authority is useless and I suggest that you call is to the state printer’s attention.

Joseph Lawrence Coniff, Jr.:

I apologize on behalf for the inconvenience caused to Court by that error.

Warren E. Burger:

Mr. Morisset, do you have anything further?

Mason D. Morisset:

Just briefly —

Lewis F. Powell, Jr.:

Mr. Morisset before you get started I wish you would clear up one point to me?

Is it agreed that this events occurred on privately owned lands?

Mason D. Morisset:

We are not sure if it’s privately owned, but it certainly is not state land, nor a Federal land nor an Indian allotment of any kind, which probably leaves on privately owned land.

Lewis F. Powell, Jr.:

Now if it were privately owned your position would be the same?

Mason D. Morisset:

That’s correct.

Lewis F. Powell, Jr.:

Now there is a statement in the Supreme Court of Washington’s opinion to the affect that if privately owned land had been fenced then there would have been no question of the right of that private owner to forbid Indians from hunting on it.

Lewis F. Powell, Jr.:

Is that law of Washington and the United States?

Do you agree with that?

Mason D. Morisset:

I think that’s dicta in the States Court’s opinion and I disagree completely.

This Court held in Winans that when a Federal law of some kind guaranteed hunting and fishing rights to Indian, they at least in that case had a right of entry across a patented piece of property, a fee piece of property0 to get their usual and custom place.

Potter Stewart:

That was to get to the stream, and the stream didn’t belong to the private owner, but here the land on which the deer was shot and killed that did belong to the private owner.

It was on his land and certainly is it your submission that the state of Washington County can’t even enforce it so ordinary trespass laws against Indians?

Mason D. Morisset:

Well, that’s a different case of course, but I think —

Potter Stewart:

Well, that is the case, isn’t it?

Mason D. Morisset:

Well, it could this case, that will be the next case I am sure.

And my answer would be that it could not if the facts were somewhat similar to Winans, that is an Indian was not disturbing the peace, was not endangering a farmer’s crop or his wife and children or his cows, were simply were trying to get across the land, or was in an open field or —

Potter Stewart:

They was not crossing the land to get somewhere else, he is hunting the deer on this land, and then killing it on the land, and he is shooting off a gun on the land and therefore presumably or at least hypothetically he maybe endangering other people?

Mason D. Morisset:

That’s possible.

I think there are two answers to that.

One, I don’t think that the confederated tribes will exercise this right in that way.

I think that’s — we have to of course be concerned with the out of reaches of any behavior, but I don’t it’s a practical matter the Indians are going to exercise their right to endanger others.

Secondly, if it should come to that, I think there is a point at which the Indian is not engaged in hunting, as it was contemplated by the agreement and it is contemplated today, by hunting statues.

A person or a white man can be hunting, have a license, be within State Law, but if he goes too far and runs into some other police power law, he can still be found guilty of that and I think the same principle would apply here.

Potter Stewart:

Going too far what kind of a term is that of, what specifically?

Mason D. Morisset:

No of departing from hunting, and engaging in some activity which endangers public peace.

Let me give a simple example.

I think that an Indian would be bound not to shoot across a public highway in the exercise of his hunting rights because the state there is not trying to stop him from hunting per se, is not allocating the resources as it is trying to do here, is trying to preserve the public peace and if he insists on shooting across a public highway that really isn’t hunting as it was guaranteed by this agreement.

It is something else and I don’t think that any responsible Indian tribe would try to defend that kind of behavior.

William H. Rehnquist:

Most states that I am familiar with Mr. Morisset allow posting, that is a private land owner can say even though you have got a hunting license, even thought it is hunting season, you can’t hunt on the land that I privately own.

Now, would you say that this private landowner if that is in fact where this took place can’t say that to a member of the Colville tribe?

Mason D. Morisset:

I think if the facts are similar —

William H. Rehnquist:

Is the answer is yes or No?

Mason D. Morisset:

I can’t answer yes or no because it’s a difficult fact law question as it was in Winans.

If that barred every member of the tribe from getting to aboriginal in usual and custom hunting place, if there were no way to get up the valley other than to cross that farmer’s land, I would say that the farmer does not have that right.

He took the fee patent subject to the rights of the Indians to cross his land.

Thurgood Marshall:

He doesn’t have the right on his way to shoot a deer, am I right?

William H. Rehnquist:

Well if it is a question of can he shoot the deer on this land, not can he pass over it?

Thurgood Marshall:

Or he would —

Mason D. Morisset:

Alright, I understand that.

He will have a right to pass over certainly and I think he would have a right to shoot the deer if he did not endanger to that persons property or life.

Thurgood Marshall:

Even if (Inaudible) posted again?

Mason D. Morisset:

Yes, yes.

There is nothing in the agreement or in the Federal law —

Thurgood Marshall:

But supposing —

Mason D. Morisset:

— that says that the patents will be issued not subject to this agreement.

Thurgood Marshall:

And patent and posted —

Mason D. Morisset:

Pardon me.

Thurgood Marshall:

Well, suppose it was fenced and posted, the private land, you could still climb over the fence and shoot a deer.

Mason D. Morisset:

Nothing in the agreement says that this will apply only to unclaimed or unposted lands.

It says all usual and the custom places.

William O. Douglas:

This hunting took place on that post service —

Mason D. Morisset:

Pardon me.

William O. Douglas:

Was this in the Colville National Park?

Mason D. Morisset:

It was not on forest land, Mr. Justice Douglas, as far as we know, no, it does not appear that way in the maps.

William O. Douglas:

But is there anything in the record that shows what the deer population of this area is?

Mason D. Morisset:

No, there is nothing.

My own personal knowledge is that it varies greatly from year to year, some years it’s down, some years it’s up.

And the Indians themselves are concerned of course about the resource.

Potter Stewart:

Has there been a case before involving this kind of language in anything other than a treaty filed up, in the other cases, there are all involved treaties.

Now this we — it’s common ground that I gathered that this is, whatever it is, it’s not a treaty.

Mason D. Morisset:

That’s correct.

Potter Stewart:

Now, has there been a case in this court before involving —

Mason D. Morisset:

To my knowledge, there is no case involving an act of Congress as to this particular point, this particular kind of right.

I may be incorrect in that, I’m not really sure.

Potter Stewart:

Well, it’s not restricted kind of right.

In the same language or similar language, it might create the same — purport to create the same right in a treaty, but this is not a treaty.

Mason D. Morisset:

That’s correct.

Potter Stewart:

And my question is, is there any previous case in this Court dealt with any such language in a —

Mason D. Morisset:

Act of Congress —

Potter Stewart:

— or in a Purchase and Sale agreement?

Mason D. Morisset:

Not that I am aware, well, though there have been other purchases in the sale subsequent to 1871, and those purchases and sales have reserved rights and there may be, may be similar cases, but I don’t know.

Potter Stewart:

You don’t know that?

Mason D. Morisset:

I don’t know.

Potter Stewart:

I don’t know either.

Mason D. Morisset:

I see my time —

Warren E. Burger:

What you are saying is that an Indian of category of Okanogan has a greater right to hunt in this area than non-Indian citizen in the State of Washington with a license?

Mason D. Morisset:

Absolutely.

Warren E. Burger:

Yes and that he derives that right because of – in fact, that it existed before the government ever issued a patent on that land through anyone.

Mason D. Morisset:

That’s correct, exactly Your Honor.

Potter Stewart:

Now, that alone wouldn’t, you are not relying on.

You have to rely on the language, don’t you? — 1899.

Mason D. Morisset:

I am relying on; one the reservation of the right in 1872 and the fact that it’s never been taken away, has never been mentioned except in the 1891 Agreement and there it is reserved, not taken away

Potter Stewart:

Well then, aren’t you relying on the language of the 1891 Agreement?

Mason D. Morisset:

Yes, but I want to make it clear the right does not fall completely if we completely take away the 1891 Agreement because it preexisted that agreement; it was simply reserved by that agreement.

Potter Stewart:

But wouldn’t the – if there hadn’t been any such language and if there had been simply the 1906 legislation, would you have the same case?

Mason D. Morisset:

The 1906 legislation refers only to the 1891 Agreement

Potter Stewart:

Right, and if there had been no such language in the agreement, would you have the same case or any kind of a case at all?

All the 1906 legislation did was to – it was a five installments of 300,000 each.

Mason D. Morisset:

That was 1906, authorized the appropriation, the 1907 acts authorized 300,000 a piece.

If there is — assume there is no 1891 Agreement at all, we still have a problem that the rights were vested in the tribe by the establishment of the reservation and we find nowhere that those rights have been taken away.

So in my position would be they exist.

Potter Stewart:

— when they sold the land, didn’t they sell everything that went with it in the absence of the language on which you rely?

Mason D. Morisset:

Well, that goes more to the disestablishment question and this Court has held that in many cases, where tribes have been terminated, reservations have been terminated, that the Hunting and Fishing Right continues unless the Congress explicitly says we take that away and I of course, agree with those rulings of the Court.

I think they are valid.

Warren E. Burger:

Thank you gentleman.

The case is submitted.