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

ADVOCATES:
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

Question

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.

David Frohnmayer:

The language of sale of the aboriginal lands is clear.

The tribe ceded all their right, title, and claim.

And as I have mentioned in my answer to your question, Justice O’Connor, the treaty provided for exclusive fishing rights in the streams and lakes included in said reservation.

The gathering rights were also restricted within its limits.

The language was later construed by court decision to include hunting rights, but the treaty provides on its face and by no fair reading for any off-reservation rights.

Subsequently it was demonstrated that surveys erroneously had excluded some 621,000 acres from the tribal lands in the reservation, and other Poundary Commission proceedings and a new survey during which time the tribe was represented by independent legal counsel, it was agreed that the boundary dispute would be resolved.

The tribes agreed to cede to the United States those disputed 621,000 acres in exchange for approximately $533,000.

A 1969 Indian Claims Commission decision later awarded the Indians $4 million more for this to compensate for this transaction.

Sandra Day O’Connor:

Mr. Frohnmayer, is there anything to establish whether that Claims Commission considered the value of the tribal hunting and fishing rights when it made its award?

David Frohnmayer:

In the Claims Commission, counsel for both parties agreed that they should be compensated at fair market value and at the highest and best use.

It was agreed by the parties in those Claims Commissions that the highest and best use was for timber and grazing, and that was the basis of the compensation.

The 1906 agreement which ratified the… the 1906 cession Act which ratified the bilateral agreement provided in Article 1, and this language is particularly important, that the Klamath Indians do

“hereby cede, surrender, grant, and convey to the United States. “

all their claim, right, title, and interest in and to the erroneously surveyed lands.

In its recitation of consideration, Article 2 of that same cession act provided that this was satisfaction

“in full of all claims and demands of said Klamath or other Indians arising or growing out of the erroneous survey. “

No express reservation was made in this 1906 Act for any residual hunting, fishing, or gathering rights on the ceded lands or indeed on any off-reservation areas.

The federal government immediately placed most of this land in Crater Lake National Park or in national forests.

The parties stipulated that the Indians continued to hunt, fish, and trap on the excluded lands without regard to state regulation, but also that they were unaware of any denial by the tribe that the state lacked this regulatory power, at least until proceedings were instituted in the instant case.

William H. Rehnquist:

I am a little curious as to what that stipulation reflects.

The state of Oregon didn’t try to regulate the Indians in the national forest when they fished, or they thought they were regulating, but the Indians thought they weren’t?

David Frohnmayer:

The latter construction is probably correct, and of course the state was a stranger to the agreement between the United States government and the tribes.

The state has its regulatory authority by virtue of the joint agreement with the federal government which ordinarily asks states to manage lands and manage wildlife within the national forests in their boundaries.

And, of course, enforcement of game and fishing laws are a discretionary matter with the states, although we need to go somewhat beyond the record to amplify it.

In 1906, this was a very sparsely inhabited area in the state of Oregon.

John Paul Stevens:

Does the record tell us, General Frohnmayer, whether the state required non-Indians to have licenses to hunt and fish during this period?

David Frohnmayer:

The record is silent on that point, but I am certain from everything I know about the history of enforcement of Oregon game and fish laws that seasonal limits, bag limits, and license requirements would be required uniformly of persons not of the tribe.

John Paul Stevens:

So really what was happening here, they just weren’t enforcing those against the Indians.

David Frohnmayer:

That is apparently so.

The stipulation speaks in terms of the parties being unaware of that extent.

David Frohnmayer:

The Ninth Circuit below affirmed the summary judgment for the tribe in its action to enjoin state regulation.

It found that these rights were not appurtenant to the property, and that they survived and were not inconsistent with the cession agreement.

We believe that the Ninth Circuit’s decision has traveled on an unnecessary collision course with three massive obstacles.

The first of them is the stark and clear language of the 1864 treaty, which confines hunting and fishing rights to reservation boundaries.

The second is the unambiguous language of the cession agreement, which sold and ceded the land and thereby diminished the reservation boundaries.

The third analytical roadblock is the absence of any explicit regrant by Congress of a tribal right to hunt or fish on those ceded lands free of normal state regulation.

Let me now expand on those points.

The 1864 treaty provisions on hunting, fishing, and gathering rights specify the boundaries, and the operative words are “within said reservation” and “within its limits”.

The treaty does not refer to aboriginal rights.

It does not refer to any off-reservation rights.

It does not, as some treaties of time time would have, refer to geographically undefined usual and accustomed places of fishing, such as were found in the Antoine–

Byron R. White:

Could I ask, Mr. Attorney General, before the 1864 treaty, the Indians had aboriginal title to a much larger area?

David Frohnmayer:

–That is correct, Justice White.

Byron R. White:

And part of the treaty was ceding all but the reservation?

David Frohnmayer:

That is correct.

Byron R. White:

And was there any express mention, in ceding the non-reservation lands, was there any mention of ceding fishing rights also?

David Frohnmayer:

No, the cession–

Byron R. White:

I take it that the Indians before the treaty had fishing rights.

David Frohnmayer:

–Aboriginal fishing rights, yes.

Byron R. White:

Yes, exactly.

David Frohnmayer:

Yes, throughout the–

Byron R. White:

How did they lose their aboriginal fishing rights in the area that was not included in the reservation?

David Frohnmayer:

–By virtue of the treaty, Justice White.

Byron R. White:

Just by quit claiming their right, title, and interest to all that land except the reservation?

David Frohnmayer:

Yes.

Well, the language–

Byron R. White:

It didn’t mention fishing rights, though.

David Frohnmayer:

–It didn’t mention any rights.

It referred to the rights by geographic area.

Byron R. White:

Yes, all right.

David Frohnmayer:

Nor has this Court, to my knowledge, in any place when a general cession of land is made to the United States specifically required the separate itemization or valuation–

Byron R. White:

I was just pointing… that they lost fishing rights by a general cession.

David Frohnmayer:

–That’s right, for which they were paid.

Byron R. White:

And you are arguing, I suppose, that when the reservation was diminished, their fishing rights were in the diminished area or in the area that was excluded were lost for the same reason.

David Frohnmayer:

That is correct.

That is the argument, and that is an argument which would follow from my ambiguous language of sale and cession where in the first instance the fishing right is defined by the terms of the treaty as being within the reservation boundaries.

Thurgood Marshall:

But they weren’t paid for giving up their fishing rights.

David Frohnmayer:

Well, they were not paid separately as an itemization, Justice Marshall.

Thurgood Marshall:

I thought you said they were paid for the price of lumber… timber.

David Frohnmayer:

They were paid to extinguish the–

Thurgood Marshall:

So they weren’t paid for the fishing rights.

David Frohnmayer:

–They were not paid separately for the fishing rights, Justice Marshall, but I think that is a question of… the compensation issue is two steps removed.

Thurgood Marshall:

I just can’t get fishing rights over with lumber.

David Frohnmayer:

I beg your pardon, sir?

Thurgood Marshall:

I can’t get fishing rights over with lumber.

If you pay for the lumber, you are not paying for fishing rights.

David Frohnmayer:

You are paying for the land and all that is appurtenant to the land.

The highest and best use agreed by the parties, including by the tribe, was that that was fair market value.

When a house is sold, separate valuations are not given for the attic or for the foundation.

Thurgood Marshall:

It depends on the state.

But you are relying on the cession language when the reservation was diminished.

David Frohnmayer:

That’s correct.

We are relying on two things.

First is the nature of the treaty right which is created in 1864, which defines it within the territorial confines of the reservation, and then we are relying on the unambiguous language of the cession agreement, which could not be more precisely suited to effective diminishment–

Byron R. White:

And that is true, you say, no matter what happened later before the Indian Claims Commission.

David Frohnmayer:

–I am not sure I follow, Justice–

Byron R. White:

Well, they were paid… they had another proceeding before the Indian Claims Commission?

David Frohnmayer:

–That’s correct.

Byron R. White:

So you say that the Indian Claims Commission proceeding has no bearing on this general cession language.

David Frohnmayer:

The Indian Claims Commission bears only on the adequacy of the compensation that was given for the cession.

Byron R. White:

Did I understand you to say earlier, Mr. Attorney General, that the additional $4 million awarded by the Indian Claims Commission was measured by lumber and something else?

David Frohnmayer:

And grazing–

Byron R. White:

Lumber and grazing.

David Frohnmayer:

–because that was the highest and best use for the land, as agreed by counsel for both parties, the tribe and the United States.

That compensation was for the land area that was taken.

Warren E. Burger:

You were in the process of developing three points.

You had gone over the 1864 treaty language.

Now, what was the second one?

David Frohnmayer:

Well, the language of the cession agreement, which is the language which is unambiguous.

When Congress wanted to preserve hunting and fishing rights in the ceded areas, it knew how to do so.

Page 28, Footnote 5 of our opening brief cites authority to this Court in which it was regarded at the time as the normal practice, that when the Congress of the United States wished the tribes to retain aboriginal hunting or fishing rights or earlier hunting and fishing rights within the area to be ceded, they knew how to do so and they said so, and that was something for which there was bargain and sale.

And so what we have is, the very silence of the cession agreement indicates that the language of it, which is precisely suited to effect a diminishment, as this Court found in De Coteau and in Footnote 22 of De Coteau where it cites additional treaties at the time.

The contemporaneous practice was perfectly clear to the Congress of the United States, and its intention to see that the reservation boundaries were diminished is, I think, unassailable.

Let me return to the question on which I had a colloquy with Justice Marshall a moment ago, because the tribe’s position on compensation is anomalous.

Bear in mind that the fishing rights at issue here were exclusive fishing rights within the boundaries of the reservation.

The tribe has conceded, apparently without much argument, that it lost exclusivity of those fishing rights, and now seeks to say that because it was not compensated for what obviously is the far lesser value, if indeed there is any value at all in being subject to state regulation, that therefore that lack of compensation shows that Congress must not have intended to do what it did in the cession language, and that is to include everything in the sale.

We think the tribal argument is inconsistent, necessarily inconsistent by not complaining of the greater deprivation of the asserted right, and at the same time saying that the presence of the lesser deprivation without compensation therefore must mean that Congress must not have intended to include these rights because they were not included in the sale.

We think that when the argument is pursued, it falls of its own weight.

Tribes retain no beneficial interest, as this Court has found was sufficient in some cases, the Ash Sheep case, for example.

John Paul Stevens:

May I just interrupt with one thought that is troubling me?

Your argument is that on the valuation point, omitting the hunting and fishing isn’t significant because the timber and the grazing was the highest and best use for the land, and therefore an appropriate measure of use, and therefore you don’t have to worry about other uses.

But does that totally meet the argument that the hunting and fishing rights might be not pertinent to the land at all, but a separate bundle of rights that wouldn’t necessarily be included within the valuation.

That is part of their argument, as I understand it.

David Frohnmayer:

And I will confess, Justice Stevens, that we are perplexed by that argument, because the question that must be posed to the tribe, it seems to me, is what kind of right is it that is being claimed if it is not a treaty right or if it is not an occupancy right?

The treaty gives two conceivable bases on which that right could be urged, the exclusive right to occupy the land or the fact that the treaty confers the right to fish, gather, and hunt within its limits.

But when both of those potential theoretical bases are destroyed by a cession agreement with respect to some part of the land, then what theoretical basis is left to assert that these are not–

John Paul Stevens:

In other words, perhaps, to be sure I understand your point, you are saying that although theoretically they could exist separate and apart from a piece of land, they don’t in this case.

David Frohnmayer:

–That’s right.

In many treaties, or at least in some treaties which have reached this Court, it is clear that the treaty right to hunt and fish can not only not be within the boundaries of the reservation, but it can be on the Columbia River many miles, for example, from the Akima Tribe’s reservation, and this Court has held that where those conditions exist, the treaty right is protected and is not appurtenant to the… but here, the only two bases on which we can find for the assertion of hunting and fishing right in the ceded area is either that they come from the right to occupy, which no longer exists, or from the treaty language creating the rights, which says within its limits and within said reservation.

But consider, if you will, this anomaly.

David Frohnmayer:

The western part of the ceded land lies squarely within the boundaries of Crater Lake National Park.

Congress has prohibited hunting altogether in national parks, and has required that fishing be done only with hooks, and yet by the reasoning that the tribe now urges on us, either the tribe has a right, because that was ceded land, to hunt and fish free of state regulation, or it does not, because the federal government can bar it.

So, not only have they started from an exclusive treaty right within the reservation, the right asserted now becomes one which is nonexclusive, nonuniform, because it apparently does not apply as against the federal government or private landowners, and can be exercised only to prohibit state regulation.

It is an anomalous right which is being asserted today, and one which analytically, I think, cannot be justified on the basis of the language and the law that is asserted to have created it.

It is for that reason that we believe that the very analysis scheme which the tribe urges today would cause this Court to unravel all tribal cession agreements since the creation of this nation unless the Congressional language in that cession agreement explicitly extinguished hunting and fishing rights on the ceded land.

We have yet to find a treaty that does so explicitly, and that presumably is one of the reasons which motivated this Court in the De Coteau decision to stay and to look to how unequivocal the language of bargain and sale is in the cession agreement to determine whether or not it was precisely suited to effect a diminishment.

In this case, we believe that it was.

John Paul Stevens:

Well, if the cession language in the… was it 1906?

David Frohnmayer:

Yes, it was, Justice White.

John Paul Stevens:

If the cession language in the 1906 agreement didn’t extinguish fishing rights in the land that was ceded, I would suppose that the Indians would still retain the fishing rights in all the land they gave up in 1964.

David Frohnmayer:

You mean 1864?

John Paul Stevens:

Yes.

David Frohnmayer:

Yes, if this is not language of extinction of rights in and to the land, it is difficult to know what language would accomplish that objective unless it is the claim of the tribe that for everything that was of value to the tribe, there must be a specific inventory in the document of bargain and sale to give some valuation to that right or show that it was conveyed.

One good example of that, a right which was perhaps not important at the time except that we know that Crater Lake was a sacred place for the Klamath Tribe as it indeed is for anyone who witnesses it, but the western boundary of the claimed land was right on the rim of Crater Lake, of inestimable value now for recreational and aesthetic purposes.

There was no specific recitation in the cession agreement in 1906 putting a value on this land separate and apart from fair market value.

Is it to be said now, then, that because the cession agreement was silent with respect to particular items of valuation, that the language of bargain and sale of cession, of giving up all right, title, claim, and interest is to be regarded as ineffective as against that–

William H. Rehnquist:

Was that the language of the 1906 agreement?

They grant, bargain, and sell all right, title, and interest, or something to that effect?

David Frohnmayer:

–Let me read it precisely.

It appears on Page 3 of our petition for certiorari.

The Klamath Indians, and I quote, Justice Rehnquist,

“do hereby cede, surrender, grant, and convey to the United States all their claim, right, title, and interest in and to. “

these excluded areas.

Byron R. White:

And that was very similar to the language in the 1864 treaty?

David Frohnmayer:

The language in the 1864 treaty was that they cede all their right, title, and claim.

Byron R. White:

Yes.

David Frohnmayer:

Ironically enough, the language in the 1906 agreement is almost identical to the language used in the DeCoteau Tribe agreement, which this Court found was precisely suited to effective diminishment of the boundaries of the reservation.

The tribe rests its argument so far as we can tell, other than on a somewhat self-contradictory theory of the origin of these rights, on Article 4 of the cession agreement.

We believe that they have misconstrued Article 4.

Article 4, by its terms, is a savings clause.

David Frohnmayer:

It grants no new rights.

It is typical of boilerplate language used in tribal agreements of that period.

In reading that clause to grant off-reservation hunting and fishing rights would by its terms be inconsistent with the treaty language that establishes those rights within the reservation.

Bear in mind the purpose of Article 4 is to keep the 1864 treaty and the 1906 cession consistent with each other.

And yet what an inconsistency that would wreak, because instead of on-reservation exclusive rights to hunt and fish and gather, their reading of Article 4 would create off-reservation, non-exclusive, and non-universal rights, because, for example, of the national parks and because they concede that they can’t hunt and fish on private land, at least without the consent of the landowner.

The rights that Article 4 was meant to save are plain within the balance of any fair reading of the 1864 treaty.

That treaty gave allotments in perpetuity.

It gave tax exemptions to Indians.

It gave family inheritance rights to Indians.

It exempted the tribal annuity from individual debts.

It protected the Klamath, Modoc, and Yahooskin band of the Snake Indians from forfeiture of their particularly valuable land in case other tribes were put there.

That is what a savings clause is intended to give.

It doesn’t confer new rights.

Moreover, the tribe has given us arguments which for four separate reasons we believe should fail.

They acknowledge diminishment but give it no legal significance.

They ask to rewrite the treaty by utterly ignoring in their briefs the limitations of “within said limits” and “within the reservation” language that is used in the treaty.

They would expand the cession act to include a new off-reservation interest, and they, we believe, misread the cases, which clearly augur in favor of the state’s position.

The first group of their cases reserves off-reservation rights.

The second group of their cases are ones in which the cession agreement actually reserves rights on the ceded land, and in the third group of cases that they cite, the cession agreement doesn’t diminish the reservation boundaries.

I would like to reserve the balance of my time, Mr. Chief Justice.

Warren E. Burger:

Mr. Miller.

Don Brantley Miller:

Mr. Chief Justice, and may it please the Court, the rights at issue here today are basic subsistence rights that continue to this day to play an extremely important role in the day to day lives of the Klamath Tribe and its members.

They are treaty rights that have been exercised continuously in the ceded area since before the 1864 treaty to the present time, and they are rights that have a very direct impact on how the Indians live their lives, and affect directly their ability to provide food for themselves and their families.

Indeed, the parties here have stipulated that in addition to the Indians’ continuous use in this area, these rights were crucial to the survival of the Klamath Indians at the time of the 1906 cession Act, and that they continue to this day to play a highly significant role in the lives of the Klamath Indians.

Now, no doubt because of this fundamental importance to the livelihood and existence of the Indians, Congress and this Court have traditionally been highly protective of treaty hunting and fishing rights.

This right to hunt and fish free of state regulation has long been regarded as more than a mere jurisdictional prerogative of the Indians.

Rather, it has been regarded as an important treaty right for the extinguishment of which just compensation must be paid.

Now, in this case and, with all due respect, contrary to Mr. Frohnmayer’s assertion, we would assert that there really is no practical reason why the 1906 Act should not be construed as preserving the tribe’s treaty rights.

Because the 1954 Klamath Termination Act preserved these same treaty rights to hunt and fish on lands that were subject to that Act, the Klamath Indians now possess a decreed right to hunt and fish free of state regulation over roughly two-thirds of their 1864 treaty reservation, an area of approximately one million acres, and those lands, like the lands at issue here today, were sold, purchased by the federal government, and placed in the national forest.

Now, tribal law governs its members’ exercise of hunting and fishing rights on those lands.

Don Brantley Miller:

The tribe has cooperative agreements with the state of Oregon, the Forest Service, U.S. Fish and Wildlife Service.

It has a wildlife code that establishes seasons and taking limits.

It issues ID’s to its members, and it employs a wildlife biologist and four tribal enforcement officers.

So, whether the tribe retained its treaty rights to hunt and fish on the additional one-third of that 1864 reservation that was ceded in 1906, and which lands are comprised of essentially similar forest lands even today, is probably not of major practical consequence to the state of Oregon, and the record in this case certainly would indicate nothing to the contrary.

William H. Rehnquist:

What is your response, Mr. Miller, to your opponent’s contention that it is a kind of peculiar right that has evolved?

It is not good on private lands, apparently, yet it is not good against the federal government, and he says it must once have been an exclusive right.

How did it become so diminished?

Don Brantley Miller:

Well, I think the Court should keep in mind that the situation of the Klamath Indians is peculiar as well.

Their reservation has been… the entire treaty reservation has now been terminated, and they have retained rights, non-exclusive rights on the other two-thirds of the reservation.

Now, we certainly admit that when these lands were sold, when all right, title, and interest was ceded, then the exclusive right to hunt and fish on those lands passed with the title to the land, and therefore we assert no interest against the private landowner.

Now, this Court has recognized–

Byron R. White:

Has passed to whom?

Don Brantley Miller:

–Your Honor?

Byron R. White:

The title was given up to the United States, wasn’t it?

Don Brantley Miller:

That’s correct.

Byron R. White:

And it was… the land became part of national forest mostly, or parks?

Don Brantley Miller:

Virtually all of it.

The record indicates that about 1 percent of the land had been entered for settlement.

Byron R. White:

Well, normally state hunting and fishing laws apply in national forests and parks, don’t they?

Don Brantley Miller:

That’s entirely correct, Your Honor.

Our assertion here is simply that the nature of the right that we assert is really… has two parts to it, or if… I mean, you can break it down into two part.

One is the exclusive right to enter on the land and reduce fish and game to possession.

The other, and, we would submit, the far more important right in this case, is the right to be free from state regulation, and those have always been considered the perhaps two important elements of Indian hunting and fishing rights.

It is a hybrid right.

It is not simply a regulatory right.

It is not simply a property right.

William H. Rehnquist:

Are there other cases in which other Indian tribes have the right broken down this way, where their right doesn’t extend to going on private land, and it is simply a matter of being free from state regulation?

Don Brantley Miller:

Well, we are… I am aware of only one, which was a Blackfeet cession Act in 1891, I believe.

In that case, the right in the ceded lands of the tribe was retained as long… to hunt and fish in the ceded lands as long as they remained public lands, but they specifically held or specifically stated that those rights would be exercised subject to state jurisdiction.

So, they did break it down.

Don Brantley Miller:

They recognized they would retain the right to go on as long as they were public lands, but applied state regulation.

So Congress knew how to apply state regulations in that area if it wanted to.

John Paul Stevens:

May I inquire what… I gather none of the land did go into private ownership in the disputed area here, but had it gone into private ownership… say they had settled a couple of hundred acres or something… would you claim the right to hunt and fish on that private land, hunt and fish on it?

Don Brantley Miller:

No, Your Honor.

Well, we would claim the right to hunt and fish free of state regulation.

We would not assert any rights to enter the land over the objection of the landowner.

John Paul Stevens:

So it is just a right to be free… and earlier you said you had four game wardens of your own, or enforcement personnel within the tribe.

Don Brantley Miller:

Yes.

John Paul Stevens:

Do they have enforcement duties in the area that is involved in this case?

Don Brantley Miller:

Well, pending the resolution of this case–

John Paul Stevens:

Before the case started, did they have such responsibility?

Don Brantley Miller:

–I can’t tell you, Your Honor.

I don’t know.

John Paul Stevens:

The record doesn’t tell us.

Don Brantley Miller:

The record has nothing, and I can’t tell you.

John Paul Stevens:

Let me ask you another question.

Supposing you win the case.

What would their responsibility be in the area of this case, these four Indian game wardens or whatever the proper title is?

Would they have some kind of jurisdiction over what happens in this area?

Don Brantley Miller:

They would have jurisdiction over only tribal members hunting and fishing.

It would be… and the state of Oregon would have jurisdiction over non-Klamath Tribe members hunting and fishing, and the Klamath Tribe issues tribal identification cards to its members, and–

John Paul Stevens:

Do they have limits, too, on how much–

Don Brantley Miller:

–They have limits.

They open areas.

They close areas.

John Paul Stevens:

–So there would be two sets of rules on the limits that could be taken from this area, one that would apply to the Indians and one that would apply to the non-Indians.

Don Brantley Miller:

That’s correct.

John Paul Stevens:

And how to fish.

I mean, I suppose there are some regulations on how fish may be taken.

Don Brantley Miller:

I assume that there are as well, Your Honor, but that is really not the major bone of contention here.

Don Brantley Miller:

Due to the number of dams on the Klamath River, there were a whole lot of fish back at the time of this agreement, and there aren’t… I mean, there are, I suppose, some trout fishing or something, but it is not a major salmon fishery as it was before.

Well, Mr. Frohnmayer has, I believe, correctly pointed out that this case does present the question of whether Congress intended to abrogate treaty hunting and fishing rights in the context of a combination of factors that have not before been considered by the Court.

But the lower court decision here certainly doesn’t represent a significant departure from the principles that have been announced in the Court’s earlier treaty property rights cases and hunting and fishing rights cases.

Byron R. White:

Well, could I ask you, if the cession language in the 1906 agreement didn’t extinguish fishing rights in the property that was ceded, why would Indian fishing rights have been extinguished in 1864 in the property that was ceded?

Don Brantley Miller:

Your Honor, this Court, I believe, has never required an express or explicit extinguishment of a treaty for hunting and fishing rights.

Byron R. White:

Do you concede that Indian fishing rights on the land that was ceded in 1864 were extinguished?

Don Brantley Miller:

Absolutely, and I will tell you why, because there was a clear expression of Congressional intent in that case as opposed to in this case.

Byron R. White:

Well, it didn’t mention fishing rights off the reservation.

Don Brantley Miller:

No, it did not.

Byron R. White:

And neither did the 1906.

Don Brantley Miller:

That’s correct.

Byron R. White:

It just said… I suppose the cession language is even more specific in the 1906 agreement.

Don Brantley Miller:

They are close to the same, Your Honor.

I don’t know if one is more specific than the other.

But you have to look to the purposes of the two acts.

The purpose of the 1864 treaty was specifically to provide an area in which the Indians could continue to be self-sufficient through hunting and fishing, and indeed the record here shows that the Indians specifically bargained for the inclusion of these ceded lands within their reservation because of their value for hunting and fishing, and the–

Byron R. White:

In 1864?

Don Brantley Miller:

–In 1864, yes.

The treaty commissioner had initially proposed to lay out a reservation on the floor of the Klamath Basin and exclude the up slopes and valleys, and the Indians said, no, you can’t do that.

These lands must be included because they form… provide us with a major part of our subsistence.

And so the government acceded, and they acceded to the Indians’ request because they were aware that the Klamath Reservation was simply too high and too cold to support any meaningful agriculture, and the treaty provided for absolutely no support whatsoever of… I’m sorry.

It provided for some support initially in the first few years, but it provided for no long-term support of the Indians by the government.

So, the government’s intent was to provide an area that would be… where the Indians could be self-sufficient through hunting and fishing, and the treaty specifically reserves fishing rights, so when the Indians voluntarily agreed to come on that reservation after having bargained for the inclusion of their hunting and fishing grounds, then that probably is a clear enough… I don’t think there’s any doubt that that is a clear enough expression of intent of the parties there to constitute an abrogation of those aboriginal rights.

But here we are talking about treaty rights.

William H. Rehnquist:

What if there hadn’t been that much, Mr. Miller?

Suppose that there had just been language saying, we transfer, grant, bargain, sell, and convey all of our right, title, and interest, whatever we may have, in these lands that are now being excluded from the reservation.

Do you say that fishing rights wouldn’t pass under that sort of cession language?

Do you see what I mean?

Don Brantley Miller:

Yes, Your Honor, and I think that you would have to again look at the circumstances of the particular act and what the intent of the parties and the understanding of the Indians was at the time.

William H. Rehnquist:

So, if there were just nothing relevant on either side on that, that general language would not be sufficient, I take it.

Don Brantley Miller:

I–

William H. Rehnquist:

Let me elaborate a little bit.

I think your opponent takes the position that if I as a seller… or I as a buyer come to you as a seller and say, look, I see you’ve got an acre of land for sale, I think it is first-rate residential property, and that would be worth $10,000, an acre of residential property, so I offer to buy that land from you, and you give me a deed to it, a grant deed.

You can’t come back the next day and say, well, I am starting to farm on this corner of the property, because all you bought from… all I sold you was the residential value of the property.

He is saying that in effect the fact that fishing rights may not have been expressly included doesn’t mean that when the Indians say we convey everything they don’t convey fishing rights, too.

Now, what is your response to his… as I understand his position?

Don Brantley Miller:

–Well, briefly, it is that the right that we assert is not a right that is appurtenant to the land.

It is not in the nature of an easement, and it does not diminish in any respect whatsoever the new landowner’s interest in the property.

We only maintain that we retain the right to hunt and fish with the permission of the landowner.

In the case of the Forest Service lands, if hunting is permitted, then we–

William H. Rehnquist:

So it is basically not a property right at all, but kind of a freedom from state regulation.

Don Brantley Miller:

–It is a freedom from state regulation that has, because of its unique character as such an important right to the Indians, that has some of the characters of a property right.

In other words, it is a compensable right.

It is a property right within the sense of the Fifth Amendment.

If it is taken away, then compensation must be paid.

But it is not an interest in the property that is ceded.

This Court has recognized, and I think maybe this could answer some of the concerns in terms of whether this decision is breaking tremendous new ground or not, this Court has held that the right to hunt and fish free of state regulation may survive the language of cession where all right, title, and interest is conveyed.

It held that in the Winans case in 1905, and this Court’s decision in the Antoine case in 1975 also held that such rights survived the all right, title, and interest cession language.

John Paul Stevens:

Have we held that such rights survive where you have both the conveyance of the entire property interest and also the diminishment of the reservation?

Don Brantley Miller:

No, Your Honor.

This Court has held that the rights do survive the total disestablishment of the reservation.

Well, if I understand… let me regroup here.

Your Honor’s question was, may they survive total disestablishment of the reservation and the cede, sell, convey, and relinquish?

John Paul Stevens:

Well, here you have the two things combined.

I don’t think you contest the fact that not only was the interest in the real estate, the land conveyed, but also the boundaries of the reservation became smaller as a result of that conveyance.

Don Brantley Miller:

That’s correct.

John Paul Stevens:

And often you might have it survive… say you conveyed land within a reservation.

Why, the hunting and fishing rights might well survive within the reservation.

Don Brantley Miller:

That’s correct.

John Paul Stevens:

But I am not aware of any cases in which you have the two factors conjoined in which the hunting and fishing rights have survived, both the conveyance of the property and the reduction in the size of the reservation.

Don Brantley Miller:

Well, the Winans decision certainly represents such a case.

Antoine, the Court’s 1975 decision in Antoine–

John Paul Stevens:

Wasn’t Winans the construction of a treaty which specifically referred to the hunting and fishing rights?

Don Brantley Miller:

–That’s correct.

John Paul Stevens:

That was my recollection.

Don Brantley Miller:

That’s correct.

And Antoine was construction of a cession agreement that also contained… so there is… there is no case, and I don’t want to be evasive, there is no case without some sort of specific preservation.

Byron R. White:

If there were a specific case, you probably wouldn’t be here, either one of you.

Don Brantley Miller:

I hate to speculate, Your Honor.

I would like to point out that the Court has held that such rights, particularly the treaty right to hunt and fish free of state regulation, that particular right, free of state regulation, has survived the total diminishment of reservation status, and that was this Court’s holding in the 1968 Menominee decision.

We believe that those principles control… in those cases, control the resolution of this case.

John Paul Stevens:

Mr. Miller, let me interrupt you once more.

Menominee kind of cuts both ways.

Aren’t there two parts to Menominee?

In the first part they had a conveyance somewhat like this, and they said that took the hunting and fishing rights along with it, didn’t they?

In other words, there was both a conveyance of the land, I thought, without any reference to hunting and fishing rights, which… I don’t remember the exact language, but the Court said, well, that implicitly took with it the hunting and fishing rights.

And then there was the second part, on which you rely.

Don Brantley Miller:

No, I–

John Paul Stevens:

They cite this in one of the footnotes in their brief.

Don Brantley Miller:

–I don’t believe so, Your Honor.

I may be misunderstanding the question, but my understanding of the Menominee case is that at the time of termination, the termination Acts specifically provided that the reservation, all federal laws would no longer apply to the reservation.

Its Indian country status was totally disestablished and diminished.

And there was a specific provision in the termination Act that required that all laws of the states would apply to the Indians in the same manner.

But it said nothing about hunting and fishing rights.

John Paul Stevens:

That’s right.

I’m referring to the language that created the reservation.

It created the reservation by conveying the land, in effect, and it said nothing at all about hunting and fishing rights.

Don Brantley Miller:

That’s correct.

John Paul Stevens:

But implicitly it was assumed that that must have gone with the–

Don Brantley Miller:

That’s correct.

Don Brantley Miller:

And I might address that issue at this time.

We do not believe that these rights are tied irrevocably to the land, so that they shrink along with the land.

These rights were defined by an area of land, as necessarily they must have been, but they were the right, a very separate right to hunt and fish over these areas, and there is no reason why they should be tied irrevocably to the tribe’s right to occupy and possess those lands.

And indeed the numerous cessions where tribal rights have been retained is reflective of the fact that these rights are not unequivocally tied to possession of the land.

I think it is very important for the Court to focus on the unique purposes of this cession Act.

They distinguish this cession Act from virtually every other land cession Act, with the exception of the Blackfeet cession Act which I alluded to earlier, in that these lands were not opened for settlement by non-Indians, and the purpose of this Act was to honor treaty obligations in a manner entirely consistent with the treaty, and to benefit the Indians.

It sought to promote their self-sufficiency.

And when you consider what must have been the Indians’ understanding at that time, here they were negotiating an agreement.

The government knew full well that these lands were important to them for hunting and fishing purposes.

They had specifically bargained for their inclusion earlier.

And yet the agreement said nothing whatsoever about hunting and fishing rights, but it did contain an article, Article 4, which provided that all treaty rights that were consistent with the provisions of the cession would be preserved.

Byron R. White:

–Could I ask, does the history show why the Indians sold or why the United States bought that land that had been erroneously surveyed as outside the reservation?

They hadn’t been settled to any extent.

Why didn’t they just include those lands in the reservation instead of having a cession and payment, things like that?

You can make an argument on the other side that if the Indians decided to sell it, they didn’t think this area was so important to them, if there weren’t any settlements around.

Why didn’t they just stick to the original boundary of the reservation?

Don Brantley Miller:

Well, we don’t know, Your Honor, and the record doesn’t reflect very much.

What it does indicate is that there are some statements by Bureau of Indian Affairs people even back in the 1880s, 15 years before the land was going… or before the Boundary Commission was even appointed to investigate, there was indication that they simply thought that the easiest way out of this mess was to just have Congress buy it, and everything seemed to proceed down that track.

And one of the important things to keep in mind, Your Honor, with regard to the cession agreement is that… and with regard to your inference that the Indians perhaps didn’t think it was important is that this was really… the agreement that was negotiated in 1901 was really not a negotiated agreement across the board.

All items weren’t on the table.

The inspector had told the Indians that he was adopting the Boundary Commission’s detailed appraisal of those lands, and that the only negotiations they were going to have regarded what the Indians were going to do with the proceeds.

So, there were no negotiations whatsoever with regard to whether the land would be ceded or retained.

The tribe had nothing to do with that.

Or how much money they would be paid for the land.

That was preordained.

It was simply–

Warren E. Burger:

We will resume there at 1:00 o’clock, counsel.

Mr. Miller, you may resume.

Don Brantley Miller:

Thank you, Mr. Chief Justice, and may it please the Court, I would like to address first a matter that was brought up earlier regarding the question of whether the Indians were paid for the value of this right or whether it was subsumed within the fair market value and highest and best use.

And I would simply point to the Joint Appendix at Page 14, Stipulation Number 19, where the state has stipulated that the Commission did not take the tribe’s hunting and fishing rights into consideration in making its assessment.

Byron R. White:

That may be so, but if you assume that the 1906 agreement ceded all rights, all that happened before the Indian Claim Commission was that they reevaluated whatever was ceded.

Don Brantley Miller:

Well, the key is all rights or–

Byron R. White:

I agree, but you have to go back to the 1906 agreement.

Don Brantley Miller:

–That’s correct, Your Honor.

Byron R. White:

Okay.

Don Brantley Miller:

Now, the state has argued that this is an anomalous, very different, almost an oddball right, that this would be the only place where it would exist.

The point to be made is that this is a right, the right that we assert today is a right that was subsumed within the larger rights that the Indians before possessed.

It is the same identical right that exists today on the other two-thirds of their treaty reservation, and it is a right that exists on numerous other national forest lands throughout the country.

It has been recognized time and again by various courts in the country.

The thing that is different about this case is not the nature of the right asserted.

The thing that is different is the manner in which the right was preserved, and Article 4, which we place great reliance on, means that the rights were only extinguished to the extent necessary to accomplish the purposes of the cession, and the purposes of this cession were not to open reservation lands to settlement, as was the case in virtually every other cession Act.

So, the retention of these rights on unfenced, unenclosed forest lands is consistent with the purposes of the cession, and the Indians surely must have understood that.

They knew that Article 4 was in that agreement, and they knew that those lands out there were not going to be settled, that they were unenclosed, unfenced forest lands, that there was no population pressure.

The exclusive nature of the right was probably unimportant to them at the time.

Nobody else used those lands anyway.

The important thing at the time was the right to be able to go out and continue to use those lands for their subsistence, and that is the way they would have understood it, we submit.

Now, the adoption of the approach for which we have argued would simply mean that in each Indian land cession Act you would have to examine each Act in light of its own legislative history and its surrounding circumstances, and in adopting the rule that we propose, the Court should bear in mind that there really were very few cessions and diminishments that were effectuated for purposes other than opening the lands for settlement, and that is the key to the analysis of this case.

This was a unique Act.

Its purpose was to settle a boundary dispute, honor treaty obligations.

Its purpose was not to benefit non-Indian settlers.

Now, as we have suggested in our brief, it might well be in those cases where there was a diminishment as well as a cession of title and the lands were opened for settlement, in those cases, there might well be an extinguishment of the rights.

The totality of those circumstances might well rise to the level of clarity that has been required by this Court for an extinguishment of the treaty rights.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Attorney General?

David Frohnmayer:

Thank you, Mr. Chief Justice.

Briefly, six points, which I believe will not require all the time that I have reserved.

First, I must respectfully submit that opposing counsel has done in oral argument precisely what he has done in the briefs, and that is to confuse the language of Article 4, which does not speak to purposes of the cession agreement.

It talks about provisions of the agreement.

Provisions are clear, and speak for themselves, and do not require psychoanalysis of the parties or the Congress which enacted it.

The second point is that we have referred in our opening argument to the anomaly created by the special situation of Crater Lake National Park, the largest part of the western cession boundaries.

David Frohnmayer:

Federal law has since time immemorial, at least since the creation of the park, prohibited hunting altogether on that piece of ceded property, and yet it is anomalous because the right asserted is the right of subsistence to hunt and fish and the allegedly onerous nature of state regulations, which simply have bad limits and season limits.

The federal government with respect to its share of those lands in the national park prohibits hunting altogether, and yet no mention of how this is to be reconciled with the theoretical position of the tribe has yet been offered by our opponents.

That leads to the point that we have heard no argument about the source of this asserted right.

That source can only come from one of four sources: aboriginal right, the treaty right of 1864, the 1906 cession agreement, or some other contemporaneous Act of Congress which regranted to the tribe the authority to hunt and fish as it had before on the ceded land, and in fact none of those first three sources is conceivably the source, and therefore we must look to the fourth.

Justice Stevens asked our worthy opponents for authority for their proposition, a point, I believe, echoed by Justice White.

Indeed, the authority cited is quite contrary.

The Blackfoot treaty which was cited as an example, as counsel explained to this Court, where the cession agreement explicitly reserved hunting and fishing rights on the ceded land until such time as they were open to the public.

The Winans case is a case where a treaty explicitly reserved off-reservation rights.

The Antoine case is a case in which the cession agreement explicitly reserved rights to hunt and fish on the ceded land, and in fact on Page 28, Footnote 5 of our brief, we cite authority to the proposition that when Congress wanted to reserve rights on ceded land, the normal practice was for the Congress of the United States to say so, and it did.

Justice Stevens in his colloquy with opposing counsel asked about the opposing interests of the state in the varieties of fish, game, and other wildlife management.

Justice Stevens, that is not in the stipulations of the parties, but in the motions to stay the District Court proceedings, the opposing views of counsel and affidavits with respect to the various practices are included in the record, and that may serve to answer your question there if that is a residual issue.

The point that the state raises is that the normal practice if something is other than a complete sale and cession and giving up of all rights in a cession agreement is for the Congress to have said so.

The Congress knew how to say so.

The Congressional language is clear and undeniable, and yet the tribe shrinks in horror at the notion that with respect to land which is admittedly no longer in tribal domain but in the public domain, that the same rules, the same regulation to enhance wildlife and to protect the environment should apply to tribal members as well as to all the members of the public.

We believe that the intention of Congress is otherwise, and that the ability of the state to regulate this land with an even hand in the interests of enhancing its wildlife resource ought to be preserved as against the theory which has no true basis in analytical consistency that we can discover.

Thank you very much.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.