Warren E. Burger: -- this morning in 71-1182, Mattz against Arnett. Mr. Sclar.
Lee J. Sclar: Mr. Chief Justice, I have completed my --
Warren E. Burger: I hope you have reserved some time for rebuttal I believe, have you?
Lee J. Sclar: Yes, I have. Yes.
Warren E. Burger: Very well. Mr. Walston, you may proceed.
Roderick Eugene Walston: Mr. Chief Justice, may it please the Court. I just received the Government’s AC brief in this case last Friday and their brief prompted me to try to locate some additional information which I succeeded in doing. I am going to refer to this information during the course of my oral argument and it may well be that the Court would like me to also cite the sources where this information can be located. Now, I will be happy to do that, but at the same time, it might be more convenient for this Court if I am permitted to file a very short brief after this argument is concluded setting forth this additional sources of information. I leave it to the Court to decide that that question and I’ll happily comply with whichever matter of the Court wishes.
Warren E. Burger: But perhaps, the first alternative would be sufficient, but we won’t confine you to that.
Roderick Eugene Walston: Okay, fine, thank you.
William H. Rehnquist: Mr. Walston, let me ask you a question before you begin. I noticed that you refer the several maps in your brief in the Government and your opponent referred to several maps. How many of these maps where placed in evidence in the trial court?
Roderick Eugene Walston: None, Your Honor. The -- we offered those maps merely to show that the reservation status of the Klamath River Reservation is unsettled at the present time. But, I don’t think that those --
William H. Rehnquist: When you have a case involving maps, you offer him an evidence and this probably goes to your opponent’s case as much as to yours. You offer them an evidence to the trial court. You authenticate them in some way. You may have expert testimony as to the how credible they are. I have some difficulty with the idea that this Court should simply consider a bunch of maps that were never offered to the trial court.
Roderick Eugene Walston: That’s probably true with respect to most maps Justice Rehnquist, but one of the maps that we referred to, in 1909, map was contained in a the Presidential Proclamation which is published in the official governmental reports, and I think that map can be referred to as an official federal document. The other maps where simply geologic survey maps that I simply located by my own means and I would agree that those are not properly before the Court.
William J. Brennan, Jr.: Well, what’s this?
Roderick Eugene Walston: That’s a map that was offered by Mr. Sclar for illustrative purposes only.
Speaker: It’s not an evidence?
William J. Brennan, Jr.: That’s not an evidence, no.
Byron R. White: But you -- but the purpose for which it’s offered to this Court, you don’t object?
Roderick Eugene Walston: I don’t object, no. It’s merely illustrative that shows --
Byron R. White: That show where something is?
Roderick Eugene Walston: Yes, that’s correct Your Honor.
Warren E. Burger: Then, I take it with respect to the map that was attached to the Executive Order, you’ say that can be judicially noticed?
Roderick Eugene Walston: Yes, that’s correct Your Honor because that’s contained in the Senate documents and I cited the appropriate citation in my opening brief to this Court.
Byron R. White: Do you concede that the tribe owns the bed of this river in the area that was issued here?
Roderick Eugene Walston: We haven’t raised that question Justice White. There is a question in the case as to whether the Indians actually own the bed of the river. The Solicitor General responded to your question yesterday by saying that the Donnelly Court had decided that question. I recall from my own recollection, however that the Donnelly Court itself later reversed its own finding on that question and left the matter up in the air, and I would refer the Court to page 711 of the same volume of the United States reports in which the Donnelly decision is reported, page 75.
William J. Brennan, Jr.: What was that on rehearing?
Roderick Eugene Walston: Pardon me?
William J. Brennan, Jr.: Was that on rehearing or what?
Roderick Eugene Walston: That was a -- yes, it was tantamount to rehearing. It simply retracted its earlier holding and left unsettled the very question of whether the Indians own title to the bed or not. We consider -- I consider that --
Byron R. White: Is it inapplicable, is it?
Roderick Eugene Walston: I believe that the river is inapplicable and that --
Byron R. White: So normally, that State would have an admission would have taken side of the river bank?
Roderick Eugene Walston: That’s correct, Your Honor. In fact, I was prepared to submit an argument to that effect to the Court but I didn’t because I felt that there were sufficient other grounds to dispose of the case. So, I didn’t want to raise what I consider to be a technical argument. Based on your question yesterday, I --
Byron R. White: Will it make any difference for the resolution of this case?
Roderick Eugene Walston: Yes, it might. If the Indians -- if the reservation includes all of the area --
Byron R. White: It means whatever it is reasonable to decide here might not decide the case at all.
Roderick Eugene Walston: That’s possible if the court concludes that the river that runs to the old reservation is not part of the reservation itself and the title to that river is vested in the State of California, then this question is not before the Court. I should caution you Justice White that in Arizona versus Californian which is decided a few years ago by this Court, there are some language in the later part of that opinion that question -- that seemed to indicate that a river running through an Indian reservation is considered part of the reservation. And because of that language, I didn’t raise the argument in this case. I’ll be very happy to submit a --
Byron R. White: That’s a later case below what part of the Arkansas?
Roderick Eugene Walston: Sir, I am aware of that Your Honor. Anyway, I think that Justice White’s observation about the title of this area might well justify this Court in disposing this case on other grounds, but if the Court wishes to dispose of the case on the grounds that have been raised by the parties in this case that were considered by the trial court, I would respectfully submit that the key question before this Court at the present time is in determining the intent, the legislative intent behind the 1892 Act that was passed by Congress. Now, that’s the Act before this Court. That’s the Act that effectively restored all of the lands on the old Klamath River Reservation to homestead settlement and provide for individual trust allotments to the Indians with respect to those lands. Now, the Solicitor General in its AC brief has made the contention that this is merely one of many examples of legislative action in which Congress attempted to utilize the old General Allotment Act for the purpose of training over trust allotments to the Indians. The General Allotment Act basically provided that with respect to a large reservation area, any lands which are not being used by the Indians and which are surplus to their needs can be sold to homesteaders who want to receive the lands and that the proceeds from the sale can then go back into the reservation’s operating funds, so as to augment the operating capital of reservation. And this Court has held on many occasions that it was not the intent or the purpose of the General Allotment Act determining an Indian reservation, and we have no quarrel with that proposition. But the Government’s argument in trying to tie this case and with the purpose and spirit of the General Allotment Act really ignores the very unique historical context surrounding the Klamath River Reservation which is before this Court. The Government’s argument raises -- ignores the unusual historical circumstances that led Congress in 1892 that passed the Act in question. Now, I’d like to refer specifically what I consider to be the two main historical factors considered by Congress in passing the 1892 Act. First, this is I think foremost the Indians by the time the 1892 Act was passed have largely abandoned the reservation. They were no longer there for all practical purposes. If you refer to decision in United States versus Forty-eight Pounds of Rising Star Tea cited by both parties in this case, you’ll see that when the reservation was originally created in 1855, there were 2,500 Indians on the reservation. But by the time the case was decided in 1888, there were only 200 Indians left. And then if you look at the congressional reports which are cited at length in my opening brief, you’ll find that Congress estimated that the number of Indians left on the reservation at that time was 40 to 60. I have also located an 1892 census conducted by the Commissioner of Indian Affairs in which he found that they where only 30 --
Warren E. Burger: I know. Are you speaking of things that are in the record now?
Roderick Eugene Walston: Everything I said so far has been Your Honor. I now -- when I refer to 1892 census I am refer you something that I found in the annual reports of the Commission of Indian Affairs to the Secretary of Interior for the year 1893.
Warren E. Burger: Did you ask us to notice that initially?
Roderick Eugene Walston: Yes. Yes, Your Honor.
Warren E. Burger: Now, this 46 figure that was in 1892, the census of 1892?
Roderick Eugene Walston: Yes, the 40 to 60 figure, and that’s contained in the statements of the Bills, authors or the bill’s author or I should say Spokesman in the Senate at 23 Congressional Record 3918. He specifically said that they where 40 to 60 Indians left on the old reservation at that time. An 1892 census conducted by the Commissioner of Indian Affairs apparently only located 30 Indians remaining on the old Klamath River Reservation. And this is reported -- this back I piece together from two different sources of information. First, the census actually found 505 Indians total on both the Klamath River Reservation and the area 20 miles upstream from the Klamath River Reservation which everybody refers to as the connecting strip, and that fact is reported in Annual Report of Commissioner of Indian Affairs to Secretary of Interior year 1892, page 784. Then, according to the trial commissioner’s findings in the Short case which had been heavily relied upon by both the Commissioner and the United States in this case at page 55, it was stated the 475 of this Indians were located on the upstream area, and thus out of the Klamath River Reservation that leaves only 30 Indians left on the old reservation. So that means from a practical purposes that more than 95% of the Indians on the Klamath River Reservation lift the reservation between the time that it was originally created in 1855, and the time that the 1892 Act was before Congress, and that is the first historical fact that I think has some significance in this case. Secondly, after the Indians move out of the area, the homesteaders moved into the area. And according to the congressional debates which as I say had been quoted at length in my opening brief, most of the lands in the old reservation area where then taken over by the homesteaders, and they occupy this area. They lived on the -- they took over the arable lands that were located along rivers banks. So, we have the Indians basically leaving the area and the white settlers moving into the area. And many Bills were offered in the Congress through the 1818’s for the purpose of perfecting the title of these homesteaders to the lands which they occupied. The 1892 Act was a direct outgrowth of all these congressional efforts. This is the historical context that I am referring to and that I think distinguishes this case from the Seymour case and that also distinguishes this case from the typical type of case in which Congress utilize the General Allotment Act for the purpose of distributing surplus lands to homesteaders for the Indian’s benefits. Now, Congress was very greatly persuaded and influenced by these historical circumstances to which I’ve alluded is very unique historical circumstances. In fact, if you look at the House Report connected with HR 38 which is the Bill that eventually became the Act, you find the following statements. This reservation, the Klamath River Reservation, and this is Congress speaking. This reservation became abandoned in law as it has been in fact since the winter of 1861-1862. And the Bill went on into Congress and the Bill was reported on the floor of the Congress by Representative Gary. And during the course of his discussion and his oral presentation to Congress, he said as follows. In 1861, the reservation was abandoned and has never been since used for that purpose. Since 1868, it has been occupied by settlers. Then after the Bill passed the House, it went into the Senate. There the bill was amended to provide for trust allotments to the Indians. The petitioner Raymond Mattz claimed that this trust allotment amendment somehow very basically altered the nature of the Bill, and yet, the bill spokesman in the Senate said the same thing and virtually the same language that was said in the House Report and by the bill spokesman in the House, and let’s hear the Senator who spoke. He said, the Klamath River Reservation has never been used as an Indian reservation.
Warren E. Burger: Where do you have this in your appendix?
Roderick Eugene Walston: This is on page 7 of my opening brief Your Honor which is the blue brief. The Klamath River Reservation never has been used as an Indian reservation. The number of Indians located on the reservation --
William J. Brennan, Jr.: Before you get to that, what do you mean when he says there is an Indian reservation within 20 miles of the river?
Roderick Eugene Walston: He is referring there Your Honor to the Hoopa Valley Reservation which is the large 12 mile by 12 mile square reservation as located --
William J. Brennan, Jr.: Located in one on this?
Roderick Eugene Walston: Yes, I believe it’s the green block on the map. The number of Indians located on this land is various -- on the reservation is very is variously estimated up from 40 to 60 Indians. Quoting again, “There are great many settlers upon this land. It is not practically an Indian reservation. It never has been used for that purpose.” So, that’s Congress speaking. That’s what Congress had in mind and it’s quite clear from his language, this congressional language that Congress did not regard this as a fact a reservation in 1892. It did not consider that this area was actually operating for the purposes for which reservations normally operate. It clearly indicated that after the 1892 Act was passed that the reservation was not intended to survive the Act. That’s the clear and only meaning that can be attributed to this congressional language. These assurances by the bill spokesman where apparently very important in securing the passage of the Bill, and it must have been the Congress that the spokesman assumed and the Congress assumed that they where not going to open a large reservation for homestead entry and settlement if they wanted the area to continue to function as an Indian reservation.
William J. Brennan, Jr.: Now, what language of the 1892 Act do you rely on as saying that Congress really meant to discontinue the reservation status which --
Roderick Eugene Walston: Well, at this point Your Honor, I am referring more to the congressional intent behind the Act. The language of the Act itself merely provides for entry and settlement to homesteaders and it also provides for trust allotments to the Indians, and then in the first sentence -- I believe, it’s the first sentence of the Act, the 1892 Act specifically refers in the past tense, rather than the present tense to the Klamath River Reservation. It says I believe, it refers I believe to both lands and what was the Klamath River Reservation. Now, the petitioner has pointed out that that language, the use of that past tense is subject to many conflicting inferences. And if they where no congressional history before this Court, I would strongly agree with there could be conflicting inferences. But with the congressional and statements that were -- that are made on the floor of Congress, it’s quite apparent that this reference in the past tense is quite consistent with the statements which were made by the bill spokesman in both the House and the Senate, and thus indicates that Congress simply did not intent for the area to continue as a reservation.
Warren E. Burger: When you discuss these questions about the Indians moving off and the white settlers moving in, I take it either that you don’t suggest that that fact is dispositive on the legal issues, but that explains why the Bill was introduced on what Congress had in mind.
Roderick Eugene Walston: It’s precisely correct. That’s precisely correct. The effect of situation itself did not end the reservation, but that effect of situation coupled with Congress’ statements concerning the purposes of the 1892 Act do point in that direction.
Byron R. White: What is your understanding of the source as the Indian fishing rights whether there’s a reservation --
Roderick Eugene Walston: My understanding that if the area is a reservation, they are allowed to fish without restriction on the reservation. If the area is not a reservation, then they are not allowed to fish without restriction --
Byron R. White: Is it under your fact that there being a reservation is the source of that rights that no one here points to any particular treaty or any particular agreement with the Federal Government?
Roderick Eugene Walston: That’s absolutely correct, Your Honor. That question is not before the Court here. That question, it was not considered by the trial court. The trial court held only that the area wasn’t a reservation.
Byron R. White: I mean, the -- there must be some substance in the Indian’s claim of fishing right or we wouldn’t be here --
Roderick Eugene Walston: Well, the Indians --
Byron R. White: If there is a reservation present here, do you concede that the Indians have a right that the State of California may not regulate or interfere with?
Roderick Eugene Walston: Yes, that’s correct Your Honor. We concede that. But, I’d like to point out Your Honor, but with California --
Byron R. White: Why do you concede that?
Roderick Eugene Walston: Pardon me?
Byron R. White: Where do you concede that?
Roderick Eugene Walston: That if the area is a reservation, we’re not allowed?
Byron R. White: Yes.
Roderick Eugene Walston: Well, I frankly I don’t recall Your Honor. That’s one of the questions that I may have occurred to me at some already point in the case and that I simply --
Byron R. White: Are the Indians in this case fishing with -- what kind of equipment that they use?
Roderick Eugene Walston: They are using gill-nets, Your Honor.
Byron R. White: What are they?
Roderick Eugene Walston: These are large, very large mesh nets that catch the fish as they go -- as they swim through the nets by the gills so that the fish cannot return.
Byron R. White: How do they get them in the river?
Roderick Eugene Walston: I -- are you asking whether there is one or more or multiple --
Byron R. White: How do you get the net in the river? Do you need equipment to get it in the river?
Roderick Eugene Walston: No, this can be hand held.
Byron R. White: How big is it -- how big is a gill-net?
Roderick Eugene Walston: It varies. A gill-net can vary from a very --
Byron R. White: Is it used – can it be used as a commercial fishing --
Roderick Eugene Walston: Yes, yes, it commonly yes.
Byron R. White: Is that what is being used for here?
Roderick Eugene Walston: In the precise question before the Court, we do not know the answer to that question.
Byron R. White: Well, don’t you think that make some difference in terms of whether or not the Indians have fishing right that you can interfere with or not?
Roderick Eugene Walston: I am not sure, Your Honor. I would think that if the Indians have the right to fish on the reservation for the wrong purposes, they’d also have the right to fish on the reservation for commercial purposes.
William J. Brennan, Jr.: You mean by that even though perhaps in ancient times, all they can do is a little hand net to catch a fish at the time? How they could use something that strikes across the whole river and under new technology and take every fish in the river?
Roderick Eugene Walston: That’s my understanding. Now if --
William J. Brennan, Jr.: And California can’t do anything about that?
Roderick Eugene Walston: And California can’t do a thing about it. Now, the BIA, if this --
Byron R. White: If this were [Voice Overlap] where is the law that you find it -- where do you find any law like that?
Roderick Eugene Walston: You got me on that question, Your Honor. I can probably research the questions and submit an answer. I just don’t recall frankly the source of the proposition.
William J. Brennan, Jr.: Well, going go back in Worcester versus Georgia, doesn’t it state there’s no jurisdiction to regulatory jurisdiction inside a reservation?
Roderick Eugene Walston: I think that’s right Your Honor. I think that’s the source of authority. I located this long ago Mr. Justice White and I just frankly don’t recall my -- the source of that information.
Byron R. White: I think just even -- even if the State owns the bed of the river?
Roderick Eugene Walston: If the State owns the bed of the river the Indians can’t fish without restriction on the river and California can regulate --
Byron R. White: How do you know of -- can I ask you, do you know whether this river is navigable or not?
Roderick Eugene Walston: It’s my understanding that the river isn’t navigable. And I think that this was covered in Donnelly decision at page 711, I am not sure --
William J. Brennan, Jr.: All right, thanks very much.
Roderick Eugene Walston: This goes back sometime in my thinking Your Honor.
William J. Brennan, Jr.: Well, it certainly does look to be bad at all. I have seen it many times.
Roderick Eugene Walston: No, I think that’s correct and I think that’s why the Donnelly Court originally concluded that the river was not navigable and then later, it found that California had some special legislation concerning your question of navigability, and thus, the Donnelly Court changed its mind.
Speaker: If this is -- was a reservation, then you concede that the State has no jurisdiction?
Roderick Eugene Walston: Yes, that’s correct.
Potter Stewart: Well, I thought that that was an opening question according to the Government’s brief, is that the only question we have here is the preliminary question of whether or not this is or is not Indian country?
Roderick Eugene Walston: Well --
Potter Stewart: And the court -- your state court held that it was not.
Roderick Eugene Walston: Yes.
Potter Stewart: And that therefore, there was no question of any conflict this which just the State -- the State have normal application of the State Conservation, and Fish and Game Laws of your State of California. But if that findings should be reversed and if we should find that it is Indian country, then at least the Government says the respective right of the State to enforce its Fish and Game Laws and its Conservation Laws in this Indian country is a non-resolve issue and the case should be remanded to the state court for the resolution of that issue.
Roderick Eugene Walston: That’s correct, Your Honor.
Potter Stewart: Am I mistaken about that?
Roderick Eugene Walston: No, you are absolutely correct. In other words, if the area is a reservation, there is a basis for California still regulating the fishing on the area if there was no federal treaty, agreement or statute.
Potter Stewart: And that’s the question that the state court did not reach.
Roderick Eugene Walston: Right.
Potter Stewart: And it is not here, all we have here is the threshold question of whether or not this is Indian country.
Roderick Eugene Walston: Yes, that’s correct Your Honor. That’s absolutely correct. It’s interesting --
William J. Brennan, Jr.: Mr. Walston, may I get back to the statute for a moment. I gather you are arguing that it’s quite consistent to read the 1892 Act as discontinuing the preservation.
Roderick Eugene Walston: Yes.
William J. Brennan, Jr.: Although that Act in terms provides that Indians held may have allotments on the reservation. Is that consistent?
Roderick Eugene Walston: There is a single reference in the 1892 Act to the word reservation --
William J. Brennan, Jr.: Oh! It says that Indian now located upon said reservation?
Roderick Eugene Walston: Yes.
William J. Brennan, Jr.: May it anytime within one year and so forth?
Roderick Eugene Walston: Yes. If you look at the word said reservation Your Honor, you will see that it is a reference back to the statement and I believe it is prior of sentence to “Land --
William J. Brennan, Jr.: Well, how can you allot lands to Indians unless it’s a reservation?
Roderick Eugene Walston: Oh! This is done quite commonly, Your Honor. This was done in the -- with respect to the north half of the Colville Reservation in 1892 which involved an Act that was passed about two weeks before the 1892 Act before this Court. And in that case, Congress discontinued the north half of the Colville reservation, and yet made the number of Indian allotments on the old existent -- on the former reservation. And this Court held in both United States versus Pelican and the in the Seymour case that the old north half of the Colville Reservation was terminated, and yet that individual trust allotments of Indians were still situated on the old area. So in effect, they have created of course federal enclave type situation. The Court has expressed I think some concern --
William J. Brennan, Jr.: Do you have to rely on the 1892 Act as in fact discontinuing this reservation?
Roderick Eugene Walston: Yes, that’s correct, Your Honor. The Court has expressed some concern about the type of regulation. I think that California is providing with respect to Yurok fishing activity in the Klamath’s River. And I want to remind the Court that the Section 7155 of California Fish and Game Code is the code section under which we regulate Yurok fishing activity in the Klamath’s River. Incidentally, I made an error in my opening brief. I said that the -- that that Section was enacted in 1957. Actually, it was enacted in 1951 and it was re-codified in 1957. That means that for 22 years, nearly a quarter of a century, California has been regulating Yurok fishing activity in the Klamath River, and nobody has objected. The BIA has not objected. They never offered and they never brought any lawsuit against the State the California with respect to this regulation. Now, this regulation I think clearly recognizes the very special circumstances that the Yurok Indians find themselves in. We recognized that the Yuroks are in impoverish tribe and that they have special economic and social needs, and that they do deserve some special consideration under California’s Fish and Game Code structure, and with provided this type of protection for them in Section 7155, because we’ve immunized them from many of the restrictions which are imposed on none -- on non-Indians on whites who fish in the same river. For instance, whites who fish in the river have to -- can only fish can only fish during certain seasons of the year. Indians can fish at any time of the year for --
William J. Brennan, Jr.: Are there private commercial fishing?
Roderick Eugene Walston: No, Your Honor. Under the Code Section, they are not permitted to fish and catch the fish and then sell the fish.
Potter Stewart: Subsistence purposes only.
Roderick Eugene Walston: Subsistence purposes only. That’s correct Your Honor. And also, the Indians are not subject to daily bag limits. In other words, they can simply take as many fish as they want from the river each day, except for three very critical types of fish, the sturgeon, the salmon and the trout. But the white man who fishes in that river is subject to daily bag limits with respect to every type of fish. So, California has recognized for nearly a quarter of a century that the Indians, that the Yurok Indians fishing in that area has special problems and that they have a special dependency on this fishery, unless that they should be given some type of special consideration. But at the same time, I think we are highly cognizant in California that needs of the fishery itself, it needs to be protected. It can’t sustain an unending yield forever. The Fish and Game Officials in California feel very strongly that if the Yuroks are allowed to fish without restriction in this area, the fishery might and probably very will be irreparably damage. So, in California, we try to reconcile these two competing needs, the needs of the Indians, the needs of the fishery itself and we’ve come up with Section 7155 which has worked for nearly a quarter of a century and we -- I respectfully ask this Court to uphold the decision of the California Court of Appeals and allow California to go on trying to work -- working this question out on an ad hoc basis.
Warren E. Burger: I think Mr. Sclar you have a few minutes left.
Lee J. Sclar: Yes. Unfortunately, Your Honor I think I have all to short of period of time here, but I will try to answer a number of questions that have been raised. As to the conservation issue, I’d like to point out that the State of California is not the only agency capable of regulating this fishery. The Federal Government and the Indians are quite capable of regulating and the Indians did so before the white man arrived. The Bureau of Sport Fisheries of the Department of Interior presently has a program which you can tell from the interior hearings for fiscal year in 19 -- that the interior appropriation hearings for fiscal 1973, operating on 75 or 80 Indian reservations in this country. One of those, although it doesn’t appear anywhere in the record is the Hoopa Indian Reservation. I’d also like to deal with this question of what types of nets have historically been used on this reservation. If you look at page 839 of the appendix, you’ll find that the Indians have historically fished here with large nets, very large nets including gill nets up to, I believe its 85 feet long.
William J. Brennan, Jr.: 85?
Lee J. Sclar: 85 feet long. In other words, these are the same types of gill nets being used today with the exception that the nets are being made today are of nylon instead of out of cord. But the type of --
Thurgood Marshall: Do they have gill nets in the 1880?
Lee J. Sclar: Yes, they did Your Honor.
Thurgood Marshall: Is that in the record?
Lee J. Sclar: It’s in the appendix. If you look at Kroeber, he doesn’t point to any particular year.
Byron R. White: Now, what do you mean historically?
Lee J. Sclar: A. L. Kroeber is an Anthropologist who did the most definitive studies in the California Indians. His book has been judicially noticed by a number of courts and we have reprinted the parts of his book dealing with fishing by the Yurok Indians in the Klamath River in the appendix. He does not point to any particular year when this was being done, but his anthropological study discussing the conditional life patterns of the Klamath Indians.
William H. Rehnquist: (Inaudible)
Lee J. Sclar: Yes, Your Honor, it was.
William H. Rehnquist: In the form of a live witness or just judicial?
Lee J. Sclar: No, the court just judicially has the book, but Your Honors, the court ruled that the whole issue was irrelevant, that the conservational question was irrelevant to the case because he determined that the area either was or was not an Indian reservation, and therefore state law would or would not apply regardless of the conservation question.
Byron R. White: What’s the authority for that, counsel?
Lee J. Sclar: Your Honor, I would like to answer that. At this point, I would not like to take the absolute position of the State under no circumstances could regulate, but I’d like to tell you the source of the Indian fishing rights which I think is your principal question. There are three sources that the Indians claim here. One is the executive order establishing the reservation for Indian purposes. You remember that the extension is an extension of the Hoopa Valley Reservation set aside for Indian purposes. In a California case, Donegan versus the California Justice Court, 15 Cal third of 562, the court held that that provision for Indian purposes encompass Indian fishing rights. This Court is done a similar thing in the case of Menominee versus United States at 391 U.S. 404 at 405, 406 implied in a treaty with the Menominees that the setting aside the reservation abuses in Indian reservation, implicitly gave Indian fishing rights. A second basis the Indians claim for their fishing rights is 18 U.S.C. 1165 which vest in the Indians the absolute right to determine who shall fish on an Indian reservation. And finally, the Indians in this case claimed that there is an implied agreement between the United States and the Indians, giving them fishing rights on the reservation --
Byron R. White: Does that includes commercial fishing rights?
Lee J. Sclar: Well Your Honor, at this point, we do not claim that. This man was not fishing for commercial purposes. There was no assertion he was fishing for commercial purposes. The question isn’t raise. We would claim that there are commercial fishing rights in this Indians that when Congress set apart the reservation originally and understood --
Byron R. White: If it’s not a commercial fishing, what is it?
Lee J. Sclar: Just for personal use, for family use.
Byron R. White: With the gill net?
Lee J. Sclar: Yes, Your Honor. The Indians had historically fished that way.
Potter Stewart: Well Mr. Sclar, are the -- is the question of what rights to the Indians have contrary to the law of California that it would otherwise be applicable here before us? Isn’t the only question of --
Lee J. Sclar: No.
Potter Stewart: -- if this is Indian country isn’t that all that the Court of Appeals?
Lee J. Sclar: Yes, Your Honor. I mean, I was answering Justice White’s question merely. It is not before this Court. No, Your Honor.
Potter Stewart: Those questions are not simply not before us.
Lee J. Sclar: That is correct Your Honor. Although my time is expired Your Honor, would it be possible for me to discuss this question of the number of Indians living on the reservation?
Warren E. Burger: As you wish, you already have.
Lee J. Sclar: Thank you. There is one other thing Justice White I like to say, that fact that whether the river bed is or is not part of the reservation is not an issue which I believe would be dispositive of the case. In Donnelly, the court stated that it assume that the river was none navigable and then said that whether or not the river was navigable in fact, its bed was deemed as included within the extension of the Hoopa Valley Reservation. This is the court on a reconsideration of the case speaking at page 710.
Byron R. White: Yes, I have read it.
Lee J. Sclar: In addition to that, I would point out that these nets were in fact seized 200 feet from the river, so that I don’t think whether the rivers included would solve the question. I asked to the number of Indians living on the reservation. The record -- I think does not support what has been said. 40% of this land was allotted to the Indians of this reservation and in addition, the Indians were given villages. We do not know how many Indians lived in those villages. The worst statements made on the floor of Congress saying that there were only 40 to 60 Indians there, but I think those were -- the remarks rather over eager promoters of the settlers interests and not the views of the Congress. The references to an abandoned reservation in the House where repudiated in the Senate. They in addition were clearly referring to the Klamath River Reservation if you read the House Report in its entirety, you see that the words “abandoned reservation” to refer reservation abandoned at the 1860’s and they talked about the decision if Forty-eight Pounds of Rising Star Tea which is the decision which said that the Klamath River Reservation could not continue to exist because it violated the 1864 for Reservations Act. They where not talking about the Hoopa Extension as is clear by the fact that during the debates, there is no mention of the Hoopa Extension and in fact, the -- at two points, the Congress indicated they didn’t even think there was a reservation legally in this area. Finally, I would like to say that the phrase “what was the Klamath River Reservation in this Act” is not subject to conflicting interest of interpretations. I have never suggested that. I think it’s only subject to one inference, and that is that the Klamath River Reservation was dead at the time that this 1892 Act was passed that Congress knew it was shown in House Act and have been held so, and that that phrase was used merely to describe a particular portion of land, not to have any tarnations effect. I would contrast that with the Act passed two weeks later relating to the north half of Colville which said that this reservation is here by vacated and restored on public domain.
Roderick Eugene Walston: Mr. Chief Justice, may I add one additional minute?
Warren E. Burger: Is it a fact that you want to deal with?
Roderick Eugene Walston: Yes, Your Honor.
Warren E. Burger: You can clarify a fact matter. We don’t want to have any further argument by surrebuttal. Is it a factual question?
Roderick Eugene Walston: It’s in rebuttal to something, Your Honor.
Warren E. Burger: All right. If it’s factual, go ahead.
Roderick Eugene Walston: Just one fact that I like to point out to the Court’s attention. Counsel said that approximately 40% of the old Klamath River Reservation was taken over by the Indians after the 1892 Act was passed. I would refer the Court to the Annual Reports of the Commissioner of Indian Affairs to the Secretary of Interior for the years 1895 through 1900. For example, the 1895 report at page 582, and that shows that the total acreage cultivated by Indians on both the Klamath River Reservation and the upstream 20 miles area together was only 400 acres, and that figure reappears in each Annual Report of the Commissioner from 1895 to 1900. And that shows that the Klamath River Reservation -- that the Indians on old Klamath River Reservation were actually cultivating less than 400 acres on the old reservation, which of course is less than one square mile. Thank you.
Warren E. Burger: Thank you gentlemen. The case is submitted.