
    App. No. 5-59.
    December 1, 1960
    Makah Indian Tribe, a corporation, Appellant v. The United States, Appellee.
   Indian claim; appeal from Indian Claims Commission; fishing rights — damages for deprivation of. — In Indian Claims Commission case, Docket No. 60, the appellant tribe sued to recover damages for alleged deprivation of their fishing rights reserved to them under article IY of their 1855 Treaty (12 Stat. 939) with the United States. In a decision rendered on April 15, 1959 (7 Ind. Cl. Com. 477, 523), the Indian Claims Commission concluded that the regulations of the Government restricting the Indians’ right to exercise their fishing rights did not amount to a breach of the treaty and the petition was dismissed. On appeal from the adverse decision of the Indian Claims Commission, the court, on December 1, 1960, issued the following order affirming the decision of the Commission, from which order Judge Madden dissented :

This case comes before the court on appeal from the Indian Claims Commission, Docket No. 60, filed by the Makah Indian Tribe. Upon consideration thereof, together with the record before the Commission and the briefs and argument of counsel.
It is ordered this first day of December, 1960, that the decision of the Indian Claims Commission be and the same is affirmed.
Judge Madden dissents from the entry of this order for the reasons stated in his attached memorandum.
By the Court.
MarviN Jokes,
Chief Judge.

MaddeN, Judge,

dissenting:

I would remand this case to the Indian Claims Commission for findings as to whether it was necessary, in order to accomplish proper conservation of the halibut, to apply the seasonal fishing restriction to the Makah Indians.

The treaty provision here involved is:

The right of taking fish and of whale or sealing at usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the United States.

The Supreme Court, in United States v. Winans, 198 U.S. 371 (1905), held that an 1855 Treaty with the Yakima Indians, which provided that “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory” [of Washington] be further secured to the Yaki-mas, conferred upon the Yakimas continuing rights, beyond those which other citizens may enjoy, to fish at their usual and accustomed places.

Tulee v. Washington, 315 U.S. 68 (1942), reaffirmed this principle, but did say that the Yakima treaty “leaves the state with power to impose on Indians, equally with others, such restrictions of a purely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish.” The Court held, however, that the state was without power to charge the Yakimas a fee for fishing. Although the Court recognized that the fee was regulatory as well as revenue-producing, it found that the regulatory purpose could have been accomplished otherwise, and the imposition of the fee was not indispensable to the effectiveness of a conservation program.

Here, I think the Government should be required to show that its regulatory purposes could not be accomplished without the restrictions on the Indians. It is clear that the scale of fishing done by the whites was much larger than that done by the Indians, and the Government has not shown that it could not have done an adequate job of conservation by limiting only the activities of the whites, and leaving the Indians to pursue their own smaller-scale operations, which they had a right, under the treaty, to carry on.

The Indian Claims Commission made no finding as to whether or to what extent it was necessary to limit the Indians’ activities as well as those of the whites. For that reason I would remand the case to the Commission to take evidence and make findings on this question, and modify its decision, if the findings made such a modification appropriate. 
      
       Appellant’s petition for writ of certiorari denied by the Supreme Court, 365 U.S. S79.
     