Oregon Department of Fish and Wildlife v. Klamath Indian Tribe

PETITIONER: Oregon Department of Fish and Wildlife
RESPONDENT: Klamath Indian Tribe
LOCATION: New Mexico State Police Headquarters

DOCKET NO.: 83-2148
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 473 US 753 (1985)
ARGUED: Feb 27, 1985
DECIDED: Jul 02, 1985

David Frohnmayer - on behalf of the petitioners -- rebuttal
David B. Frohnmayer - on behalf of the petitioners
Don Brantley Miller - on behalf of the respondent

Facts of the case


Media for Oregon Department of Fish and Wildlife v. Klamath Indian Tribe

Audio Transcription for Oral Argument - February 27, 1985 in Oregon Department of Fish and Wildlife v. Klamath Indian Tribe

Warren E. Burger:

We will hear arguments next this morning in Oregon Department of Fish and Wildlife against the Klamath Indian Tribe.

Mr. Attorney General, I think you may proceed when you are ready.

David Frohnmayer:

Mr. Chief Justice, and may it please the Court, the statement of Oregon appears before this Court on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

This case presents an opportunity to avoid an unwarranted conflict between important principles of Indian treaty law and the fundamental sovereign powers of states over public lands and their regulatory dominion.

That conflict would threaten important environmental and wildlife management policies of state and federal government.

The question is posed by the unambiguous language of a Congressionally ratified agreement.

That agreeded ceded reservation lands, and as all parties agree, diminished the physical size of the Klamath Indian Reservation.

In these circumstances, can tribal members nonetheless hunt and fish on the ceded land without observing state regulation which applies to all other Oregon citizens on that public land?

Language, authority, and logic, we believe, require a negative answer to this question.

The Ninth Circuit decision below ignores the act of Indian reservation diminishment, and the decision below also ignores the explicit treaty language which limits the right in question to the reservation itself.

We will argue today for a general rule consistent with the decisions of this Court.

That rule would provide that where the reservation boundaries are diminished, and where treaty rights are defined by the reservation area, those rights may only be exercised in the reduced area unless Congress specifies its intention to preserve them.

But on the contrary, if treaty hunting and fishing or other rights are not limited by the reservation boundaries, they remain unaffected by the diminishment unless the Congress clearly modifies and expresses its intent to reduce them.

Sandra Day O'Connor:

Mr. Frohnmayer, do you agree that tribal hunting and fishing rights can exist outside of reservation lands?

David Frohnmayer:

Yes, very clearly.

Yes, very clearly they can.

Sandra Day O'Connor:

Well, is it possible that the 1864 treaty can be read to preserve the tribe's hunting and fishing rights in land that was at that time included in the reservation?

David Frohnmayer:

I'm sorry.

I'm not sure that I follow the second part of your question, Justice O'Connor.

Sandra Day O'Connor:

Well, can you read that 1864 treaty as creating hunting and fishing rights in whatever land was in the reservation at that time but not that it is forever bound to that land.

It could exist separate and apart from it.

David Frohnmayer:

I don't think so, and this anticipates an argument I would make in a moment, but I will reach it now, and that is that the language of the treaty is very careful to express that the hunting and fishing... or that the fishing rights are "within its limits", and then when it goes on in the same sentence to confer the gathering rights given to the tribe, those are also expressed as within the limits.

So, two different phrases within the same session which creates the rights also explicitly limit those rights to the boundaries of the reservation.

And if one looks to the purpose--

Sandra Day O'Connor:

Do you think the better reading of the treaty language then is to tie it irrevocably to the boundaries of the reservation?

David Frohnmayer:

--Yes, because it is a reservation... it is the creation of on reservation rights.

Now, when Congress at this time wanted to create rights which existed off an Indian reservation, it knew how to do so.

This Court in the classic case of Winans is a perfect example where fishing at the usual and accustomed places identifies geographic locations which may be removed from the meets and bounds of a specific reservation.

So, a treaty may create off-reservation rights, but these rights in the specific grant by Congress are unequivocally within the limits of the reservation, and that is part of what we think are the undisputed facts here, and let me touch them briefly.

In the 1864 treaty, the tribe ceded $20 million... or 20 million acres of aboriginal lands and received a reservation of some $1.9 million.