LOWER KLAMATH
ESTABLISHMENT OF RESERVATIONS
Establishment of reservation on Klamath River - Violence erupted amongst miners, farmers, Indians, and the U.S. Army. To quell the violence, Congress authorized the President "to make five military reservations [with no more than twenty- five thousand acres in each] . . . for Indian purposes." Act of March 3, 1853, 10 Stat. 238. The same Act appropriated funds for moving the "Indians in California" to the reservations. Id. Under this authority, the United States by executive order established an Indian reservation in 1855 on a strip of land on the lower Klamath River. This Klamath River reservation was to "commenc[e] at the Pacific Ocean and extend 1 mile in width on each side of the Klamath River . . . with the provision . . . that . . . a sufficient quantity be cut off from the upper end thereof to bring it within the limit of 25,000 acres . . . ." [See Executive Orders Relating to Indian Reservations 39 (1922).]
Hoopa- letters and Orders - An 1855 DOI directive orders that two military reservations be located; November 16, 1855 Executive order, "Klamath" (later Yurok) tribe - Description of cession or reservation: President sets apart a reserve of 25,000 acres on both sides of Klamath river in California, the same being a strip commencing at the Pacific ocean and extending 1 mile in width on each side of the Klamath river for a distance of 20 miles; The Hoopa refused to move to this reservation. (According to USFWS documentation, only some Yurok and Tolowa were moved.Flooding along the Klamath River in 1862 led to the closing of the area’s Indian Bureau office and contributed to the erroneous belief that the reservation had been abandoned, though it was still occupied by the Yurok )
Violence between settlers and Indians escalated, and the U.S. Army had to be reinforced. See Painter v. United States , 33 Ct. Cl. 114, 1800 WL 2032 (1897). Finally, Congress stepped in again, and on April 8, 1864, authorized the President, "at his discretion," to set apart four tracts of land "to be retained by the United States for purposes of Indian Reservations, which shall be of suitable extent for the accommodation of the Indians of said state . . . ." Act of April 8, 1864, 13 Stat. 39 (the 1864 Act). Reference: United States Statutes at Large, Volume XIII, page 39. Tribe: Hupa (S. Fork, Redwood, and Grouse Creek bands). Description of cession or reservation: Superintendent Wiley locates the whole of Hoopa valley as one of the reserves contemplated by act of Apr. 8, 1864, as follows: Beginning at the SE. corner of the reservation at a post set in mound of rocks marked "H. V. R., No. 3;" thence S. 17 1/2 degrees W. 905.15 chains to the SE. corner of the reservation; thence S. 72 1/2ø W. 480 chains to the mouth of Trinity river. Historical data and remarks: Oct. 3, 1864, the Commissioner of Indian Affairs, in approving the action of Superintendent Wiley, directed that particular care be taken in the definition of the boundaries of the reserve. Mar. 3, 1865, Congress appropriated $60,000 to pay for improvements of white settlers on the reserve.
Shermoen v. US
No. 91-16045.United States Court of Appeals, Ninth Circuit: "Act of April 8, 1864,
ch. 48, 13 Stat. 39. "An Act to provide for the Better Organization of Indian Affairs
in California." Empowered the President to: set apart ... at his discretion,
not exceeding four tracts of land, within the limits of [California], to be retained by
the United States for the purposes of Indian reservations, which shall be of suitable
extent for the accommodation of the Indians of said state, and shall be located as remote
from white settlements as may be found practicable.... Id. at 40. Acting under this
authorization, President Ulysses S. Grant issued an executive order on June 23, 1876,
formally establishing the Hoopa Valley Reservation, "a 12-mile square tract of land
in Northern California, on the last reach of the Trinity River before it joins the Klamath
River...." Short, 486 F.2d at 562; see 1 Kappler at 815. Most of the Indians residing
in "the Square," as the Hoopa Valley Reservation has been called, "were and
have been Hoopa Indians." Short, 486 F.2d at 562."
Since the Act of 1864 superseded the Act of 1853 by allowing only four reservations in
California, and since the Klamath River Reservation was not one of the authorized
reservations, the Klamath River Reservation was held to be abandoned as a reservation.
United States v. Forty-Eight Pounds of Rising Star Tea, Etc., 35 Fed. 403, 406
(N.D.Cal.1888). President Benjamin Harrison, in response to this holding, issued an
Executive Order on October 16, 1891, which expanded the Hoopa Valley Reservation by adding
"a tract of country one mile in width on each side of the Klamath River, and
extending from the present limits of the Said Hoopa Valley reservation to the Pacific
Ocean." 1 Kappler at 815. This "Addition" or "Extension" thus
extended the Hoopa Valley Reservation for some forty-five miles along the Klamath River,
thereby encompassing the old Klamath River Reservation. The consequence of President
Harrison's order "was the creation of an enlarged, single reservation incorporating
without distinction its added and original tracts upon which the Indians populating the
newly-added lands should reside on an equal footing with the Indians theretofore resident
upon it." Short, 486 F.2d at 567.
On August 12, 1864, Austin Wiley, the federal Government's Superintendent of Indian Affairs for the State of California, signed a "[t]reaty of peace and friendship between the United States Government and the Hoopa, South Fork, Redwood, and Grouse Creek Indians." Hupa, at 89. This treaty, which was not presented to Congress for ratification, purported to obligate the United States to set aside "for reservation purposes for the sole use and benefit of the tribes of Indians herein named, or such tribes as may hereafter avail themselves of the benefit of this treaty, the whole of Hoopa valley." <
1864 Treaty with
the Hoopa, South Fork, Redwood, and Grouse Creek Indians (unratified);
On
August 21, 1864, Wiley published at Fort Gaston, in the Hoopa Valley, a
proclamation that he had "this day located an Indian reservation, to be known and
called by the name and title of the Hoopa Valley Reservation."
In 1875 the boundaries were surveyed by C. T. Bissell, and by Executive order of June 23, 1876, these boundaries were adopted and declared to be the true boundaries of the Hoopa Valley reserve. June 23, 1876 Executive order. Tribe: Hupa et al. Description of cession or reservation: President Grant declared the boundaries and withdrew and reserved the land
Paris Folsom, a Special Agent for the DOI, proposed that the two reservations be connected in his “Report of Special Agent on Conditions and Needs of Non-Reservation Klamath Indians,” sent to the Commissioner of Indian Affairs in 1885.
1888 "Forty-Eight Pounds of Rising Star Tea, Etc." The judge found that although the land was still the property of the Federal Government the Klamath Reservation had been abandoned after the flood. See also Oct., 31, 1966 Elser v. Gill Net Number One (Dewey George and Grover Reed):
"...The Klamath River area was originally a part of the
public domain transferred by Mexico to the United States in 1848 by the treaty of
Guadalupe Hidalgo (Donnelly v. United States, 228 U.S. 243, 252-259 [57 L.Ed.
820, 33 S.Ct. 449]). The earliest Indian reservation in that part of northern California,
known as the Klamath River Reservation, was a military reservation established by
executive order dated November 16, 1855, pursuant to an Act of Congress (10 Stats. 686).
It extended 20 miles up the river from its mouth, and was one mile in width on each side
of the Klamath River and was subsequently inhabited by about 2,500 Indians. It was
abandoned in 1861 after a disastrous flood. The Klamath River Reservation was
formally terminated in 1864, when Congress enacted a statute designed to provide
adequate permanent reservations for all of the Indians of California (13 Stats. 39). This
statute authorized the President to set apart four tracts of land within the State of
California to be retained by the United States as Indian reservations of suitable extent
and for the accommodation of all of the Indians of California, and specifically directed
that any existing reservations not retained were to be surveyed into lots or parcels of
suitable size, to be offered for public sale (United States v. Forty- eight Pounds of
Rising Star Tea (N.D.Cal. 1888) 35 F. 403, at pp. 404-405.)
Pursuant to the above statute, on April 8, 1864, the President set aside, by the posting
of a public notice by the Superintendent of Indian Affairs for the State of California,
four Indian reservations in California, including the Hoopa Valley Indian Reservation. fn.
5 On June 23, 1876, President Grant, by {Page 246 Cal.App.2d 34} executive order, formally
defined the boundaries of the Hoopa Valley Reservation as a tract of country approximately
12 miles square, containing about 89,000 acres, lying on both sides of the Trinity River
immediately above its junction with the Klamath River. No portion of the abandoned Klamath
River Reservation was included in the Hoopa Valley Reservation.
Fifteen years later, on October 16, 1891, President Harrison, by executive order,
enlarged the Hoopa Valley Reservation to include a two-mile-wide strip of land lying one
mile on each side of the Klamath River from the original northern boundary of the
reservation at the junction of the Klamath and Trinity Rivers to the mouth of the Klamath,
a distance of about 40 miles. The lower 20 miles of this 40-mile-long strip of land
coincided with the area of the former Klamath River Reservation. The validity of this
executive order was challenged and upheld in Donnelly v. United States, 228 U.S. 243 [57
L.Ed. 820, 33 S.Ct. 449]. fn. 6 The Donnelly opinion further pointed out (at pp.
258, 259) that in the year immediately following President Harrison's executive order, the
extended area was occupied by the Lower Klamath Tribe, whose principal subsistence was
fishing.
In 1887 Congress passed the General Allotment Act (25 U.S.C.A., §§ 331, 358) designed to
break up the reservations and allot specific parcels of land to individual Indians, the
land remaining after allotment to be opened for settlement. Accordingly, in 1892 Congress
passed a Special Act directing that the area of the old Klamath River Reservation be
immediately opened for public purchase (27 Stats. 52). Thus, the lower 20 miles of the
40-mile-long strip of land included in the 1891 extension of the Hoopa Valley Reservation,
for all practical purposes, almost immediately lost its identity as part of the Hoopa
Valley Reservation. However, the upper 20 miles of the strip was not affected by the Act
of 1892, has remained an integral part of the Hoopa Valley Reservation to the present
time, and has become commonly known as the Hoopa Extension or Hoopa Extension
Reservation."
President Harrison extended the boundaries in October 16, 1891 Executive order. Tribe: Hupa et al Description of cession or reservation: The President extends the limits of their reservation so as to include a tract of country 1 mile in width on each side of the Klamath river, and extending from the then limits thereof to the Pacific ocean. Historical data and remarks: This extension includes the land set apart to the Klamath Indians by Executive order, Nov. 16, 1855, which, however, was subsequently abandoned by them because of the destruction of their property by a great freshet. (See No. 400, California map 2.) This addition is shown by blue lines extending from the Hoopa reservation to the Pacific ocean. The 1891 order extended the Hoopa Valley Reservation to include the old Klamath Reservation and the strip of land connecting the two reservations.
DOI Solicitor's letter 2/5/1958 "The first pertinent act of Congress providing for reservations for the Indians of California was the Act of March 3, 1853, 10 Stat. 238. This act authorized the President to "make five military reservations from the public domain in the State of California * * * for Indian purposes." The Act limited the area which might be reserved to 25,000 acres and appropriated $250,000 for subsistence and costs of removing the Indians to the reserved area. One of the areas so reserved was the Klamath River Reservation established November 16, 1855, by the Executive Order of President Franklin Pierce."
"Subsequent to the admission of California as a state, the announced intent of Congress was to collect the various groups of Indians in California and to locate them on reservations set aside to afford protection against the encroachment of white settlers. On April 8, 1864 (13 Stat. 39) Congress authorized the President, in his discretion, to set aside not more than four tracts of land in California to be retained by the United States as Indian reservations, suitable in extent to accommodate the Indians in that State. The lands were to be located as remote from white settlements as possible, having due regard for their adaptability for the purpose for which they were intended. The act further provided that at least one of the reservations be located in what had theretofore been known as the "Northern District." Pursuant to this act, the Hoopa Valley Reservation was established as one of the four reservations contemplated by the legislation."
" In the year 1861, a flood destroyed the arable lands of the Klamath River Reservation and some of the Indians located thereon were removed to a new temporary reservation known as the Smith River Reserve, established May 3, 1862. A majority of these Indians preferred to reside on the old reservation, however, and nearly all of them returned within a few years to the Klamath River area. Meanwhile, by the act of April 8, 1864, supra. the State of California was constituted one superintendency for the administration of Indian affairs and the President was authorized to set apart four additional tracts of land within the State for Indian purposes. There were already in existence at that time the following reservations: Klamath River, Menducino and Smith River. Both the Mendocino and Smith River reservations were later discontinued by the act of July 27, 1868, 15 Stat. 221, 223. During this time, the Klamath River lands were treated as a distinct reservation administered by an Indian Agent of the United States who also oversaw the affairs and development of the Hoopa Valley Reservation approximately 20 miles away. As an aid to the administration of these two separated areas, they were brought together under the Order of October 16, 1891, which reads as follows:
"EXECUTIVE MANSION, October 16, 1891. It is hereby ordered that the limits of the Hoopa Valley Reservation, in the State of California, a reservation duly set apart for Indian purposes, as one of the Indian reservations authorized to be set apart in said State by act of Congress approved April 8, 1864 (13 Stat. 39) be, and the same are hereby, extended so as to include a tract of country 1 mile in width on each side of the Klamath River, and extending from the present limits of the said Hoopa Valley Reservation to the Pacific Ocean: Provided, however, that any tract or tracts included within the above described boundaries to which valid rights have attached under the laws of the United States are hereby excluded from the reservation as hereby extended. BENJ. HARRISON."
Act of June 17, 1892. | 27 Stat., 52. An act to provide for the disposition and sale of lands known as the Klamath River Indian Reservation. (this land was restored to the public domain, without reference to the Executive order of Oct. 16, 1891.) (Ruling Mattz v. Arnett, 412 U.S. 481 (1973) - The Klamath River Reservation was not terminated by the Act of June 17, 1892, and the land within the Hoopa reservation boundaries is still Indian country, within the meaning of 18 U.S.C. 1151. Pp. 494-506). Together, the 1876 and 1891 executive orders created the extended Hoopa Valley Reservation, which ran along both sides of the Klamath River, from the mouth of the Trinity River down to the Pacific Ocean.
Crichton v. Shelton, 33 I.D. 205, 217 (1904)."[t]here is little question that the prevailing motive for setting apart the reservation was to secure to the Indians the fishing privileges of the Klamath River."(1)
Proclamation 1909 adding some Hoopa lands to Trinity National Forest;
Donnelly v. United States, 228 U.S. 243 (1913). This case questioned the legality of the enlargement of the Hoopa Valley Reservation by two executive orders. See id. The plaintiff, who was charged with murdering an Indian on the reservation, contended that the President had exhausted his authorization under the Act of April 8, 1864 when the original reservation was created. See id. at 252–55. If the plaintiff’s contention was proven true it would have denied the federal court jurisdiction over the case. See id. However, the Supreme Court upheld the validity of the executive order and prosecuted the plaintiff. See id. at 258–59.
Blake v. Arnett, 663 F.2d 906, 909 (9th Cir. 1981)
United States v. Wilson, 611 F.Supp. 813, 817-818 (N.D.Cal. 1985), rev'd on other grounds sub nom.
United States v. Eberhardt, 789 F.2d 1354 (9th Cir. 1986).
Short v. United States (Ct. Cl. No. 102-63): Short I (Court of Claims 1973) 202 Ct. Cl. 870, portion at 486 F.2d 561; All “Indians of the Reservation” must share in timber and other revenues distributed - No vested rights existed in 1864-91 0-Extension of Square in 1891 gave additional Indians equal rights with those of the Square; [BIA implementation of Short I - 70/30 split of revenues began in 1974 when certiorari denied; 70% account “Indians of the Reservation” clarified in 1975; “Gerard Plan” for Hoopa and Yurok tribes announced in 1978; later changed to “issue by issue” process; “Reservation-wide” account replaces 70/30% accounts]; Short II (Court of Claims 1981) 661 F. 2d 150 (Cert. denied 455 U.S. 1034 (1982)) Yurok tribe won’t be substituted in lieu of the individual plaintiffs; Short III (Court of Appeals for Federal Circuit 1983) 719 F.2d 1133 (Cert. denied 467 U.S. 1256) Jurisdiction exists under 25 U.S.C. 407 (timber); Short IV (Claims Court 1987) 12 Cl. Ct. 36 Damages payable based on per capita distributions only - Plaintiffs have no right to “escrow” funds; Short V 25 Cl.Ct. 772 (Court of Federal Claims 1992) Plaintiffs get interest on their damages because trust funds earn interest:; Short VI 28 Fed. Cl. 590 (Court of Federal Claims 1993) Plaintiffs not entitled to escrow funds; Short VII 50 F.3d 994 (Court of Appeals for Federal Circuit 1995) Short IV, V and VI are upheld - 2,612 plaintiffs (or their heirs) paid $23,561 maximum payment
Beaver v. Interior blocks Yurok organization, Injunction: halts Yurok
election, Referendum rejects Gerard Plan,
Judgment: restricts BIA efforts to aid Yurok tribal government
Puzz v. Interior Department (N.D. Cal. 1988) 988 WL 188462; BIA must run reservation and consult with all Indians of the Reservation, Community Advisory Committee process established, Hoopa Tribal Council advisory only
1988 Hoopa Yurok Settlement Act; Public Law 100-580 102 Stat. 2924 See Partitioning Certain Reservation Lands Between the Hoopa Valley Tribe and the Yurok Indians, to Clarify the Use of Tribal Timber Proceeds, and For Other Purposes, S. Rep. No. 564, at 14-15; H.R. Rep. No. 938, Pt. 1, at 20;Congress indicated that one of the purposes of the Act was to "establish and confirm the property interests of the Yurok Tribe in the Extension, including [the Tribe's] interest in the fishery. Testimony of Clifford Lyle Marshall, Chairman Hoopa Valley Tribe before the Senate Indian Affairs Committee, August 1, 2002; Senate Report 100-564
Karuk v. United States (complaint filed 1990) -Claimed rights in Square and Extension (Similar complaint filed by Ammon group and Yurok Tribe - all Yurok members also in Ammon (plaintiff groups overlap); Karuk Tribe v. United States (Court of Federal Claims 1993) - 28 Fed. Cl. 694; Karuk Tribe v. United States (Court of Federal Claims 1998) 41 Fed. Cl. 468 Plaintiff tribes and individuals had no vested property rights; [Karuk Tribe of California v. Carol McConnell Ammon, et. al.andYurok Indian Tribe, v U.S. and Hoopa Valley Tribe; (2) The Federal Circuit held that because the original reservation was created by an executive order and not by a treaty or other Act of Congress, only a permissive right of occupancy was created and not a permanent right of occupancy. In order to convey a permanent right in the land of the reservation, the court reasoned there must be a definitive action of Congress authorizing or intending that right to exist. While the court admitted that there is no specific way of proving the intent of Congress, they concluded that the plaintiffs had not proven intent in this case.
In response, the plaintiffs argued that the Act of April 8, 1864 (Hoopa,) which authorized the creation of the reservation, was intended to create a permanent peace between the Indians of northern California and the white settlers. The court agreed that this was the intent of Congress when it passed the Act of 1864, but claimed Congress achieved that goal "by giving the President broad discretion [to create the reservation], rather than conferring upon the California Indians vested property rights."
In further support of its conclusion, the Federal Circuit claimed that not only did the Act of 1864 confer only a discretionary power upon the President, but that the United States also retained title to the land under the Act.
The court concluded that while the United States government may grant rights in the land of a reservation, in accordance with acts like the Indian Mineral Leasing Act of 1927, the United States will always retain title to the reservation. It is on the basis of this retention of title that the court concluded there is no legal obligation on the part of the government to pay Indians for any action that could otherwise be deemed a taking under the Fifth Amendment. In short, without title or a clear intent by Congress, Indians residing on a reservation created by an executive order retain no right to the land on which they reside. Rights appurtenant to the reservation do not vest in Inidnas residing there.]
Karuk Tribe v. United States (Court of Appeals for Federal Circuit 2000) 209 F.3d 1366; Cert. petitions denied 523 U.S. 941 (2002) [Karuk v. U.S. Fifth Amendment taking of property interests. ; U.S. Fed Circuit Court of Appeals 99-5002,-5003,-5006]
Shermoen v. US No. 91-16045.United States Court of Appeals, Ninth Circuit. 982 F.2d 1312
2000 Babbitt ROD
Testimony of Neal A. McCaleb Assistant Secretary for Indian Affairs before the Committee on Indian Affairs United States Senate on the Hoopa-Yurok Settlement Act August 1, 2002
2003 Hoopa-Yurok Mediation Agreement: Proposed Amendments to the Hoopa-Yurok Settlement Act Developed Jointly by the tribes in Formal Mediation (December 3, 2003).
LOWER KLAMATH FISHING RIGHTS
(Note a significant reference utilized in this section was a Yurok Perspective of Trinity River Fisheries Resources.)
On January 1, 1934, primarily due to efforts of the sport fishing community, all commercial fishing on the River, and use of Indian gill nets on the lower 20 miles, was banned by the State of California. The State strictly controlled Indian fishing, and in closing the in-river commercial fishery in 1934 banned the use of gill nets in the lower 20 miles of the River even for subsistence fishing.
March 13, 1940 Solicitor's letter on question of right of Hoopa to fish in Klamath without California interference:
"On November 10, 1855, the Commissioner of Indian Affairs recommended that under authority of the act of Congress approved on March 3, 1855 (10 Stat. 698), for removing the Indians in California to two additional military reservations, "a strip of territory one mile in width on each side of the (Klamath) river, for a distance of 20 miles" be set apart as a reservation for the Indians. By Executive order dated November 16, 1855, the reservation was established.
"The Hoopa Valley Indian Reservation was created by Executive order dated June 23, 1876, and the extension thereto was created by Executive order dated October 16, 1891, under authority of the act approved April 8, 1864 (13 Stat. 39), entitled "An Act to provide for the better organization of Indian Affairs in California."
"I find nothing in the history of the setting apart of the territory here in question to indicate that the Indians possessed any rights to the lands or waters prior to the establishment of the reservations.
"Since the Indians in question derive any rights they may have in the river from the United States, the question to be considered is what title, if any, did the United States retain to itself in the bed of the particular portions of the river involved when the State of California was admitted into the Union." [See Donnelly v. U.S., 228 U.S. 243 (1913,) "It thus appears, from the course of legislation and adjudication by the appropriate authorities of California, not only that the Klamath river has been placed in the category of non-navigable streams, but that the title of the United States to the bed of it where it runs through the public lands has been distinctly recognized. In short, by the acts of legislation mentioned, as construed by the highest court of the state,-(a) the act of 1850, adopting the common law, and thereby transferring to all riparian proprietors (or confirming in them) the ownership of the non-navigable streams and their beds, and (b) the acts of February 24 and of March 11, 1981, declaring in effect that the Klamath river is a nonnavigable stream,-California has vested in the United States, as riparian owner, the title to the bed of the Klamath, if in fact it be a navigable river. If in fact it be non-navigable, it is obvious that the same result flows from the mere adoption of the common law."]
Mattz v. Arnett, 412 U.S. 481 (1973) Raymond Mattz, a Yurok fisherman, had his gill nets confiscated by the State from the banks of the lower River. Mattz contended that he was an enrolled member of the Yurok Tribe, fishing in "Indian Country", and that State law did not apply. He lost his case in two lower courts, but the Supreme Court, in Mattz v. Arnett, reversed the lower courts’ decisions and found, in 1972, that the Act 1892 opening the Reservation to allotment and non-Indian settlement did not terminate the Reservation. The land within the Reservation boundaries was still "Indian Country." Based on that decision the First District Court of Appeals, in Arnett v. 5 Gill Nets (1975) found that the right of an Indian to fish on reservation was created by presidential executive order which was derived from a stature and thus not subject to state regulation;." Arnett v. 5 Gill Nets.
The State of California regulated all fishing in the Klamath River Basin, including Indian fishing, until 1977. From 1934 until 1977 the State had prohibited all Indian gill net fishing on the ower 20 miles of the River. State regulation of the Indian fisheries ended in 1977 after two court cases (Mattz v. Arnett and Arnett v. 5 Gill Nets). The two cases determined, first, that the old Klamath Indian Reservation had not been abandoned and that it was still "Indian Country", and as a consequence, the State of California did not have the jurisdiction to regulate Indian fishing on the Klamath..
The Bureau of Indian Affairs (BIA) took over management of the Indian fishery, and under regulations issued in 1977 reopened to lower 20 miles of the River to gill net fishing for subsistence and commercial harvest. The BIA closed the Indian fishery in 1978 for "conservation" purposes enforced by a"strike force" of 35 Federal Special Agents supplemented by U.S. Park Service and BIA officers. The Conservation Moratorium on Indian commercial harvest remained in effect until completion of an EIS on the issue in 1987. Through a 1978 Memorandum of Understanding between the Indian Affairs and Fish, Wildlife and Parks, the U.S. Fish and Wildlife Service (U.S.F.W.S.) provided yearly evaluations of the salmon runs into the River and monitored the Indian net harvest. The Hoopa Valley Tribe took over monitoring programs for their Tribal fisheries on the Trinity River portion of the Reservation in 1983. On the lower 43 miles of the Klamath River the U.S.F.W.S. continued monitoring the Yurok fishery until 1995 when the newly authorized Yurok Tribal Council, through their Fisheries Program, took over management of their fisheries on the Yurok Reservation.
Both Tribes now have full management authority over regulation of their fisheries. Harvest levels are set according to run predictions and allocation limits and regulations for quotas, closures, and gear are developed annually by the Tribes. Tribal regulations are reviewed by the Department of Interior to assure that the Trust Responsibility for the resource is being met.
January 14, 1981 Secretarial Decision recognizing Hoopa minimum flow rights to the Trinity dating to 1864 and riparian rights for reservation lands bordering the Klamath
People v. McCovey, 36 Cal. 3d 517, 1984 the court found that the State lacked jurisdiction and held that the comprehensive federal regulation of Indian fishing rights preempted the State from criminally prosecuting Yurok fishers for the commercial sale of salmon harvested on the Reservation.
Congress adopted the Klamath Basin Restoration Act (PL 99-552), in October of 1986. The Act created a new 11 member Klamath Fishery Management Council (KFMC) to supersede the original Management Group. The KFMC's advisory function is to make harvest management recommendations to the various management agencies including annual recommendations to the PFMC. All recommendations passed forward to agencies or to the PFMC must be with the consensus of all members.
In 1987, based on recommendations of the KFMC, the PFMC changed the spawning escapement goal for the Klamath Basin. Instead of having a fixed numerical ocean escapement goal they adopted a policy of "Harvest Rate Management." Under Harvest Rate Management, whether the overall stock populations are high or low, the management goal is to allow a fixed percentage of all salmon from each brood year to spawn. This management method provides two advantages. First, it allows the spawning escapement to fluctuate; in high population years the escapement would be larger than if the stock was fished down to a fixed numerical escapement, and in low years fisheries would not be closed to meet an escapement level that was not attainable. Second, having the wide range of escapements allowed under Harvest Rate Management will allow the eventual determination of the carrying capacity of the system. To protect the stock in years of very low abundance, an escapement "Floor" of 35,000 natural spawners was put in place.
In 1987, with and allocation of approximately 30 percent of the allowable harvest under a Five Year Agreement with the Klamath Fishery Management Council, and with the completion of the EIS on commercial fishing, the Yurok Tribe opened the first uncontested commercial fishery in 54 years. Stock abundance predictions allowed for Indian commercial harvest in 1987, 1988, and 1989. The Five Year Agreement instituted by the KFMC ended after 1991, and due to depressed salmon populations and predictable harsh closures on all fisheries, a new allocation agreement could not be reached.
Oct 4, 1993 Solicitors Opinion M36979. Fishing Rights of Yurok and Hoopa; "A specific, primary purpose for establishing the reservations was to secure to the Indians the access and right to fish without interference from others..the Indians’ reserved fishing rights were of no less weight because they were created by executive orders pursuant to statutory authority rather than by treaty. Courts have uniformly rejected a ’treaty vs. non-treaty’ distinction as a basis for treating Hoopa and Yurok fishing rights differently from the treaty-reserved fishing rights of tribes in other areas of the United States." The Secretary of Commerce and the Secretary of the Interior met to coordinate regulations for the 1993 harvest and concurred that the Tribes were entitled to a 50 percent share of the available harvest. During the 1993 season setting process the PFMC recommended ocean harvests that would fail to meet the resource rights of the Tribes. The Secretary of Commerce suspended the PFMC’s regulations, and under emergency regulations set a lower allowable harvest for ocean fisheries and allowed for a higher predicted in-river run and spawning escapement. Interior adjusted the Tribal allocation to near fifty percent. In October of 1993, the Department of the Interior’s Solicitor issued a Memorandum (M-36979) concluding that: ".when the United States set aside what are today the Hoopa Valley and Yurok Reservations, it reserved for the Indians of the reservations a federally protected right to the fishery resource sufficient to support a moderate standard of living or 50% of the harvest of Klamath-Trinity basin salmon, whichever is less." No. M-36979,Reserved federally protected fishing rights The right of the Yurok Tribe to take fish on the Klamath River, which is derived principally from the purpose for which the Reservation was created, is protected and guaranteed by federal law. Because the populations of salmon are declining, the standard for determining the tribal catch on the Klamath River has been 50% of the allowable harvest. The tribal catch is presently fully allocated solely between the Yurok Tribe and the Hoopa Valley Tribe, the only tribes in the lower Klamath Basin with federally-recognized fishing rights. The Bureau of Indian Affairs has determined that of the 50% tribal share, the Yurok Tribe is entitled to take 80% and the Hoopa Valley Tribe is entitled to take 20%.
1995 On Petition for a writ of Certiorari
to the U.S. Court of Appeals for the Ninth Circuit (Denied) Whether the Yurok and Hoopa
Valley Tribes have federally protected fishing rights that the Secretary of Commerce must
take into account as "other applicable law" under the Magnuson Act, 16 U.S.C.
1854(a)(l), in setting harvest levels for
Klamath River salmon.Ocean commercial fishermen alleged that the Secretaries of Commerce
and Interior had violated the Magnuson Fishery Management and Conservation Act by reducing
the allowable ocean harvest rate for 1993. The U.S. 9th Circuit Court of Appeals, in 1995,
disagreed, finding that under the Magnuson Act Commerce may issue regulations affecting
coastal fishing to protect against violations of "other applicable law." The
Court concluded that the Secretary of Commerce "is a trustee of tribal interests as
well as the administrator of the Magnuson Act; (and that he) properly considered the
Tribes’ fishing rights (as other applicable law) in issuing emergency regulations
reducing ocean harvest limits of Klamath chinook." (Parravano,
et al. v. Masten, et al No. 94-16727 (9th Cir., Nov. 16, 1995)
Parravano v. Babbitt, 70 F.3d 539, 545 (U.S. App. 1995); cert. denied, 518 U.S. 1016 (1996) The Ninth Circuit Court of Appeals has ruled that the executive orders that created the Yurok Reservation vested the Yurok Tribe with "federally reserved fishing rights."
"That executive orders played a prominent role in the creation of the [Hoopa Valley] Reservation does not change this result [that the United States reserved to the Indians the right to fish on the Reservation without state interference]. Regardless of the manner in which a reservation is created the purpose is generally the same: to create a federally-protected refuge for the tribe . .."
"With Congress's authorization, the 1876 and 1891 executive orders first created and then extended a reservation "for Indian purposes" along the main course of the Klamath River. Donnelly, 228 U.S. at 253 . We have never encountered difficulty in inferring that the Tribes' traditional salmon fishing was necessarily included as one of those "purposes." See United States v. Wilson, 611 F. Supp. 813, 817-18 (N.D. Cal. 1985), rev'd on other grounds sub. nom., United States v. Eberhardt, 789 F.2d. 1354 (9th Cir. 1986). Our interpretation accords with the general understanding that hunting and fishing rights arise by implication when a reservation is set aside for Indian purposes. See Menominee Tribe v. United States, 391 U.S. 404, 406 (1968); Pacific Coast, 494 F. Supp. at 632. Thus, we reject Parravano's novel theory that ambiguity in the phrase "for Indian purposes" should be resolved against the Tribes..."
"In partitioning the original reservation in 1988, Congress recognized the importance of the Tribes' rights to fish along the Klamath River. Although the 1988 Hoopa-Yurok Settlement Act did not explicitly set aside fishing rights, it did make clear that the partitioning would not dispossess the Tribes of their assets. The legislative history of the 1988 Act indicates that Congress was aware that each Tribes' interests in their salmon fisheries was one of its principal assets. For example, Congress explained that:
"The legislation will also establish and confirm the property interests of the Yurok Tribe in the Extension, including its interest in the fishery, enabling the Tribe to organize and assume governing authority in the Extension....
"S.R. 564, 100th Cong., 2d Sess., 2-9 (1988); H.R. 938, Pt. 1, 100th Cong., 2d Sess., 8-15. Given this legislative history, we cannot accept Parravano's invitation to interpret the 1988 Hoopa-Yurok Settlement Act as a divestiture of the Tribes' federally reserved fishing rights. Barring explicit Congressional instructions to the contrary, we must construe any ambiguities in the executive orders and in the 1988 HoopaYurok Settlement Act in the Tribes' favor. See DeCoteau, 420 U.S. at 444 ; Confederated Salish and Kootenai Tribes, 665 F.2d at 955.
"We have noted, with great frequency, that the federal government is the trustee of the Indian tribes' rights, including fishing rights. See, e.g., Joint Bd. of Control v. United States, 862 F.2d 195, 198 (9th Cir. 1988). This trust responsibility extends not just to the Interior Department, but attaches to the federal government as a whole. Eberhardt, 789 F.2d at 1363 (Beezer, J., concurring); see also Pyramid Lake Paiute Tribe v. United States Dept. of Navy, 898 F.2d 1410, 1420 (9th Cir. 1990); Covelo Indian Community v. FERC, 895 F.2d 581, 586 (9th Cir. 1990). In particular, this court and the Interior Department have recognized a trust obligation to protect the Yurok and Hoopa Valley Tribes' rights to harvest Klamath chinook. See Eberhardt, 789 F.2d at 1359-62; Interior Solicitor's Opinion, at 29...
"Parravano argues that even if the Tribes have fishing rights, these rights cannot extend outside of the reservation because they do not derive from a treaty. According to this reasoning, because the Tribes' fishing rights arise out of executive orders, the Secretary of Commerce cannot regulate ocean fishing in order to protect Indian salmon harvests. We rejected a similar argument in Washington Charterboat. There, we found that there is "nothing in the language of the Magnuson Act or in its legislative history that even remotely suggests that Congress intended to abrogate or modify" Indian treaties which included salmon fishing rights. Washington Charterboat, 702 F.2d at 823. Because we reject a broad treaty/ executive order distinction, especially with regard to the Hoopa Valley and Yurok Tribes' fishing rights, Washington Charterboat applies here.
"The Klamath chinook is an anadromous species. As a result, successful preservation of the Tribes' on-reservation fishing rights must include regulation of ocean fishing of the same resource. Indeed, allowing ocean fishing to take all the chinook available for harvest before the salmon can migrate upstream to the Tribes' waters would offer no protection to the Indians' fishing rights. We must conclude, as we did in Washington Charterboat, that the Tribes' federally reserved fishing rights are accompanied by a corresponding duty on the part of the government to preserve those rights...."
"Finally, because of the migratory nature of the Klamath chinook, the protection of upstream tribal fishing rights depends on coordinating regulation of ocean and river fishing."
Testimony of Susan Masten, Chairperson Yurok Tribe Before the House Subcommittee on Fisheries Conservation, Wildlife and Oceans May 4, 2000
2002 DOI Report to Congress Hoopa -Yurok Pursuant to Section 14(c) Public Law 100-580