No. 73-717
Argued: December 16, 1974Decided: February 19, 1975
- 1. The ratifying legislation must be construed in the light of the longstanding canon of construction that the wording of treaties and statutes ratifying agreements with the Indians is not to be construed to their prejudice. Pp. 199-200.
- 2. The Supremacy Clause precludes application of the state game laws here since the federal statutes ratifying the 1891 Agreement between the Executive Branch and the Indian tribe are “Laws of the United States . . . made in Pursuance” of the Constitution and therefore like all “Treaties made” are made binding upon affected States. Nor does the fact that Congress had abolished the contract-by-treaty method of dealing with Indian tribes affect Congress’ power to legislate on the problems of Indians, including legislation ratifying contracts between the Executive Branch with Indian tribes to which affected States were not parties. Choate v. Trapp, 224 U.S. 665 ; Perrin v. United States, 232 U.S. 478 . Pp. 200-204.
-
- 3. In ratifying the Agreement pursuant to its plenary constitutional powers Congress manifested no purpose of subjecting the
- rights conferred upon the Indians to state regulation, and in view of the unqualified ratification of Art. 6 any state qualification of those rights is precluded by the Supremacy Clause. Pp. 204-205.
- 4. Although the State is free to regulate non-Indian hunting rights in the ceded area, the ratifying legislation must be construed to exempt the Indians from like state control or Congress would have preserved nothing that the Indians would not have had without the legislation, which would have been “an impotent outcome to [the] negotiations,” United States v. Winans, 198 U.S. 371, 380 . Pp. 205-206.
82 Wash. 2d 440, 511 P.2d 1351, reversed and remanded.
BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 208. REHNQUIST, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 213.
Mason D. Morisset argued the cause and filed a brief for appellants.
Joseph Lawrence Coniff, Jr., Assistant Attorney General of Washington, argued the cause for appellee. With him on the briefs were Slade Gorton, Attorney General, and James M. Johnson, Assistant Attorney General. *
[ Footnote * ] Solicitor General Bork, Assistant Attorney General Johnson, Louis F. Claiborne, Harry R. Sachse, and Edmund B. Clark filed a brief for the United States as amicus curiae urging reversal.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The appellants, husband and wife, are Indians. They were convicted in the Superior Court of the State of Washington 1 of the offenses of hunting and possession [420 U.S. 194, 196] of deer during closed season in violation of Wash. Rev. Code 77.16.020 and 77.16.030 (1974). 2 The offenses occurred on September 11, 1971, in Ferry County on unallotted non-Indian land in what was once the north half of the Colville Indian Reservation. 3 The Colville Confederated Tribes ceded to the United States that northern half under a congressionally ratified and adopted Agreement, dated May 9, 1891. Article 6 of that ratified Agreement provided expressly that “the right to hunt and fish in common with all other persons on lands not allotted to said Indians shall not be taken away or in anywise abridged.” 4 Appellants’ defense was that congressional [420 U.S. 194, 197] approval of Art. 6 excluded from the cession and retained and preserved for the Confederated Tribes the exclusive, absolute, and unrestricted rights to hunt and fish that had been part of the Indians’ larger rights in the ceded portion of the reservation, thus limiting governmental regulation of the rights to federal regulation and precluding application to them of Wash. Rev. Code 77.16.020 and 77.16.030. The Supreme Court of Washington held that the Superior Court had properly rejected this defense and affirmed the convictions, 82 Wash. 2d 440, 511 P.2d 1351 (1973). We noted probable jurisdiction, 417 U.S. 966 (1974). We reverse.
I
President Grant established the original Colville Indian Reservation by Executive Order of July 2, 1872. Washington became a State in 1889, 26 Stat. 1552, and the next year, by the Act of Aug. 19, 1890, 26 Stat. 355, Congress created the Commission that negotiated the 1891 Agreement. 5 By its terms, the Tribes ceded the [420 U.S. 194, 198] northern half of the reservation in return for benefits which included the stipulations of Art. 6 and the promise of the United States to pay $1,500,000 in five installments. The Agreement was to become effective, however, only “from and after its approval by Congress.” Congressional approval was given in a series of statutes. The first statute was the Act of July 1, 1892, 27 Stat. 62, which “vacated and restored [the tract] to the public domain . . .,” and “open[ed] . . . [it] to settlement . . . .” The second statute came 14 years later, the Act of June 21, 1906, 34 Stat. 325, 377-378. That statute in terms “carr[ied] into effect the agreement,” and authorized the appropriation of the $1,500,000. Payment of the $1,500,000 was effected by five subsequent enactments from 1907 to 1911, each of which appropriated $300,000 and recited in substantially identical language that it was part payment “to the Indians on the Colville Reservation, Washington, for the cession of land opened to settlement by the Act of July first, eighteen hundred and ninety-two . . . being a part of the full sum set aside and held in the Treasury of the United States in payment for said land under the terms of the Act of June twenty-first, nineteen hundred and six, ratifying the agreement ceding said land to the United States under date of May ninth, eighteen hundred and ninety one . . . .” (Emphasis supplied.) 34 Stat. 1015, 1050-1051 (1907); 35 Stat. 70, 96 (1908); 35 Stat. 781, 813 (1909); 36 Stat. 269, 286 (1910); 36 Stat. 1058, 1075 (1911). 6 [420 U.S. 194, 199]
The canon of construction applied over a century and a half by this Court is that the wording of treaties and statutes ratifying agreements with the Indians is not to be construed to their prejudice. Worcester v. Georgia, 6 Pet. 515 (1832). See also The Kansas Indians, 5 Wall. 737, 760 (1867); United States v. Kagama, 118 U.S. 375 [420 U.S. 194, 200] (1886); Choctaw Nation v. United States, 119 U.S. 1, 28 (1886); United States v. Winans, 198 U.S. 371, 380 -381 (1905); Choate v. Trapp, 224 U.S. 665, 675 (1912); Menominee Tribe v. United States, 391 U.S. 404, 406 n. 2 (1968). In Choate v. Trapp, supra, also a case involving a ratifying statute, the Court stated: “The construction, instead of being strict, is liberal; doubtful expressions, instead of being resolved in favor of the United States, are to be resolved in favor of a weak and defenseless people, who are wards of the nation, and dependent wholly upon its protection and good faith.” 224 U.S., at 675 . See also Seminole Nation v. United States, 316 U.S. 286, 296 (1942); Morton v. Ruiz, 415 U.S. 199, 236 (1974). Thus, even if there were doubt, and there is none, that the words “[t]o carry into effect the 1891. agreement,” in the 1906 Act, and the words “ratifying the 1891. agreement,” in the 1907-1911 laws, ratified Art. 6, application of this canon would require that we construe the series of statutes as having ratified that article.
II
Although admitted to statehood two years earlier, the State of Washington was not a party to the 1891 Agreement. The opinion of the State Supreme Court relies upon that fact to attempt a distinction for purposes of the Supremacy Clause 7 between the binding result upon [420 U.S. 194, 201] the State of ratification of a contract by treaty effected by concurrence of two-thirds of the Senate, Art. II, 2, cl. 2, and the binding result of ratification of a contract effected by legislation passed by the House and the Senate. The opinion states that “[o]nce ratified, a treaty becomes the supreme law of the land” (emphasis supplied), but that the ratified 1891 Agreement was a mere contract enforceable “only against those party to it,” and “not a treaty . . . [and] not the supreme law of the land.” 82 Wash. 2d, at 444, 451, 511 P.2d, at 1354, 1358. The grounds of this attempted distinction do not clearly emerge from the opinion. The opinion states, however: “The statutes enacted by Congress in implementation of this 1891. agreement . . . are the supreme law if they are within the power of the Congress to enact . . . .” Id., at 451, 511 P.2d, at 1358. In the context of the discussion in the opinion we take this to mean that the Congress is not constitutionally empowered to inhibit a State’s exercise of its police power by legislation ratifying a contract between the Executive Branch and an Indian tribe to which the State is not a party. The fallacy in that proposition is that a legislated ratification of an agreement between the Executive Branch and an Indian tribe is a “[Law] of the United States . . . made in Pursuance” of the Constitution and, therefore, like “all Treaties made,” is made binding upon affected States by the Supremacy Clause.
The opinion seems to find support for the attempted distinction in the fact that, in 1891, the Executive Branch was not authorized to contract by treaty with Indian tribes as sovereign and independent nations. Id., at 444, 511 P.2d, at 1354. Twenty years earlier, in 1871, 16 Stat. 544, 566, Congress had forbidden thereafter recognition of Indian nations and tribes as sovereign independent nations, and thus had abrogated the contract-by-treaty [420 U.S. 194, 202] method of dealing with Indian tribes. 8 The Act of 1871 resulted from the opposition of the House of Representatives to its practical exclusion from any policy role in Indian affairs. For nearly a century the Executive Branch made treaty arrangements with the Indians “by and with the Advice and Consent of the Senate,” Art. II, 2, cl. 2. Although the House appropriated money to carry out these treaties, it had no voice in the development of substantive Indian policy reflected in them. House resentment first resulted in legislation in 1867 repealing “all laws allowing the President, the Secretary of the Interior, or the commissioner of Indian affairs to enter into treaties with any Indian tribes,” Act of Mar. 29, 1867, 15 Stat. 7, 9, but this was repealed a few months later, Act of July 20, 1867, 15 Stat. 18. After further unsuccessful House attempts to enter the field of federal Indian policy, the House refused to grant funds to carry out new treaties. United States Department of the Interior, Federal Indian Law 211 (1958). Finally, the Senate capitulated and joined the House in passage of the 1871 Act as a rider to the Indian Appropriation Act of 1871. Federal Indian Law, supra, at 138. 9 [420 U.S. 194, 203]
This meant no more, however, than that after 1871 relations with Indians would be governed by Acts of Congress and not by treaty. Elk v. Wilkins, 112 U.S. 94 (1884); In re Heff, 197 U.S. 488 (1905). The change in no way affected Congress’ plenary powers to legislate on problems of Indians, including legislating the ratification of contracts of the Executive Branch with Indian tribes to which affected States were not parties. Several decisions of this Court have long settled that proposition. In Choate v. Trapp, 224 U.S. 665 (1912), the Court held that tax exemptions contained in an 1897 agreement ratified by Congress between the United States and Indian tribes as part of a cession of Indian lands were enforceable against the State of Oklahoma, which was not a party to the agreement. In Perrin v. United States, 232 U.S. 478 (1914), the Court enforced a clause of an agreement ratified by Act of Congress that no intoxicating liquor should be sold on land in South Dakota ceded and relinquished to the United States, although South Dakota was not a party to the agreement. The Court expressly rejected the contention that the power to regulate the sale of intoxicating liquors upon all ceded lands rested exclusively in the State. Rather, because Congress was empowered, when securing the cession of part of an Indian reservation within a State, to prohibit the sale of intoxicants upon the ceded lands, “it follows that the State possesses no exclusive control over the subject and that the congressional prohibition is supreme.” Id., at 483. See also Dick v. United States, [420 U.S. 194, 204] 208 U.S. 340 (1908). These decisions sustained the ratified agreements as the exercise by Congress of its “plenary power . . . to deal with the special problems of Indians [that] is drawn both explicitly and implicitly from the Constitution itself. Article I, 8, cl. 3, provides Congress with the power to `regulate Commerce . . . with the Indian Tribes,’ and thus, to this extent, singles Indians out as a proper subject for separate legislation.” Morton v. Mancari, 417 U.S. 535, 551 -552 (1974); see also Morton v. Ruiz, 415 U.S., at 236 .
Once ratified by Act of Congress, the provisions of the agreements become law, and like treaties, the supreme law of the land. Congress could constitutionally have terminated the northern half of the Colville Indian Reservation on the terms and conditions in the 1891 Agreement, even if that Agreement had never been made. Mattz v. Arnett, 412 U.S. 481 (1973). The decisions in Choate, Perrin, and Dick, supra, settle that Congress, by its legislation ratifying the 1891 Agreement, constituted those provisions, including Art. 6, “Laws of the United States . . . made in Pursuance” of the Constitution, and the supreme law of the land, “superior and paramount to the authority of any State within whose limits are Indian tribes.” Dick v. United States, supra, at 353. 10
III
The opinion of the State Supreme Court also holds that in any event the implementing statutes cannot be [420 U.S. 194, 205] construed to render Wash. Rev. Code 77.16.020 and 77.16.030 inapplicable to Indian beneficiaries of the Agreement since the implementing statutes “make no reference to the provision [Art. 6] relied upon by the appellants.” 82 Wash. 2d, at 451, 511 P.2d, at 1358. The opinion reasons: “[I]f it was thought that state regulation but not federal regulation would constitute an abridgement, an express provision to that effect should have been inserted, but only after the consent of the state had been sought and obtained.” Id., at 448, 511 P.2d, at 1357. This reasoning is fatally flawed. The proper inquiry is not whether the State was or should have been a consenting party to the 1891 Agreement, but whether appellants acquired federally guaranteed rights by congressional ratification of the Agreement. Plainly appellants acquired such rights. Congress exercised its plenary constitutional powers to legislate those federally protected rights into law in enacting the implementing statutes that ratified the Agreement. No congressional purpose to subject the preserved rights to state regulation is to be found in the Acts or their legislative history. Rather, the implementing statutes unqualifiedly, “carr[ied] into effect” and “ratif[ied]” the explicit and unqualified provision of Art. 6 that “the right to hunt and fish . . . shall not be taken away or in anywise abridged.” State qualification of the rights is therefore precluded by force of the Supremacy Clause, and neither an express provision precluding state qualification nor the consent of the State was required to achieve that result.
IV
Finally, the opinion of the State Supreme Court construes Art. 6 as merely a promise by the United States that so long as it retained any ceded land and allowed others to hunt thereon, Indians would be allowed also to [420 U.S. 194, 206] hunt there. 82 Wash. 2d, at 449-450, 511 P.2d, at 1357-1358. But the provision of Art. 6 that the preserved rights are not exclusive and are to be enjoyed “in common with all other persons,” does not support that interpretation or affect the Supremacy Clause’s preclusion of qualifying state regulation. Non-Indians are, of course, not beneficiaries of the preserved rights, and the State remains wholly free to prohibit or regulate non-Indian hunting and fishing. The ratifying legislation must be construed to exempt the Indians’ preserved rights from like state regulation, however, else Congress preserved nothing which the Indians would not have had without that legislation. For consistency with the canon that the wording is not to be construed to the prejudice of the Indians makes it impermissible in the absence of explicit congressional expression, to construe the implementing Acts as “an impotent outcome to negotiations and a convention, which seemed to promise more and give the word of the Nation for more.” United States v. Winans, 198 U.S., at 380 ; Puyallup Tribe v. Department of Game (Puyallup I), 391 U.S. 392, 397 -398 (1968). Winans involved a treaty that reserved to the Indians in the area ceded to the United States “the right of taking fish at all usual and accustomed places, in common with citizens of the Territory.” 198 U.S., at 378 . Puyallup I considered a provision that “[t]he right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory . . . .” 391 U.S., at 395 . The Court held that rights so preserved “may, of course, not be qualified by the State . . . .” Id., at 398; 198 U.S., at 384 . Article 6 presents an even stronger case since Congress’ ratification of it included the flat prohibition that the right “shall not be taken away or in anywise abridged.” [420 U.S. 194, 207]
V
In Puyallup I, supra, at 398, we held that although, these rights “may . . . not be qualified by the State, . . . the manner of fishing [and hunting], the size of the take, the restriction of commercial fishing [and hunting], and the like may be regulated by the State in the interest of conservation, provided the regulation meets appropriate standards and does not discriminate against the Indians.” The “appropriate standards” requirement means that the State must demonstrate that its regulation is a reasonable and necessary conservation measure, Washington Game Dept. v. Puyallup Tribe, 414 U.S. 44 (1973); Tulee v. Washington 315 U.S. 681, 684 (1942), and that its application to the Indians is necessary in the interest of conservation.
The United States as amicus curiae invites the Court to announce that state restrictions “cannot abridge the Indians’ federally protected rights without [the State’s] demonstrating a compelling need” in the interest of conservation. Brief for United States as Amicus Curiae 16. We have no occasion in this case to address this question. The State of Washington has not argued, let alone established, that applying the ban on out-of-season hunting of deer by the Indians on the land in question is in any way necessary or even useful for the conservation of deer. See Hunt v. United States, 278 U.S. 96 (1928). 11 [420 U.S. 194, 208]
