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September 26, 1945

MOORE, Director of Fisheries of Washington, et al.

The opinion of the court was delivered by: LEAVY

It is admitted that the aforementioned Milo Moore and John Biggs are being proceeded against as public officials of the State of Washington, and not as private individuals. The contest, therefore, is one between the United States and the State of Washington.

 The issue for determination here is the ownership of the Quillehute River bed and the ocean tide lands, where they border this Reservation. If such ownership is actually in the State of Washington, the plaintiff is not entitled to the relief sought, and its action must be dismissed. If such lands were included in the Reservation at the time the proclamation was promulgated creating it, then the plaintiff would be entitled to prevail herein.

 By reason of previous litigation which involved the jurisdiction of the Federal Government over the identical area, there is presented a question of law that must first be determined before any consideration can be given to the questions of fact in this case.

 The plaintiff in 1929 instituted an action in this court against one W. F. Taylor and others; the State of Washington was not a party to such action, either directly or through any of its public officials. In that action it was alleged that W. F. Taylor was maintaining certain barges fastened to dolphins, which were constructed in the bed of the Quillehute River, where the same is adjacent to the Reservation uplands. The United States Government sought, on behalf of the Quillehute Indians, to establish its jurisdiction and control of the particular area involved. The jurisdictional question here presented is identical with that presented in the Taylor case, infra. The late Judge Cushman, sitting in this court, determined in that proceeding that the bed of the River, where it bordered the Reservation, was intended to be, and was, in fact, a part of the Reservation and under federal jurisdiction, and entered a decree for the plaintiff and against the defendant, Taylor. United States v. Taylor, 9 Cir., 33 F.2d 608.

 An appeal followed, resulting in a reversal, and an express holding by the Circuit Court that the river bed and the tide lands were held in fee by the State of Washington and under its exclusive jurisdiction and control. Taylor v. United States, 9 Cir., 44 F.2d 531.

 Certiorari was sought and denied in the Supreme Court of the United States. 283 U.S. 820, 51 S. Ct. 345, 75 L. Ed. 1436. Throughout this opinion I shall refer to the litigation mentioned as being the 'Taylor case.'

 The defendants herein, by the answer on file in this case, affirmatively plead the doctrines of res judicata and stare decisis, and they take the position that the application of either of these doctrines are determinative of the issues raised in this case. The plaintiff insists that neither of these doctrines applies to the issues as made by the pleadings and proof submitted, because in the Taylor case the parties were not the same as here, and that it was decided in the Circuit Court upon an erroneous premise as to the facts.

 The navigability of the Quillehute River where it borders the Reservation is admitted. It is also admitted that such River is navigable at least for a distance of some miles above the Indian Reservation.

 While it is clear that the plaintiff in this case was also plaintiff in the Taylor case, the defendant is an entirely different party, being, in fact, the sovereign State of Washington, and any private rights that might be involved here are only incidental. This litigation is a controversy between the Federal Government, on the one hand, acting as guardian of a duly recognized Indian Tribe, and the individuals named herein as defendants, acting in their official capacity for and on behalf of the State of Washington. When so considered, it is evident that the doctrine of res judicata is without application.

 The second contention of the defendant that the Taylor case is stare decisis and becomes the law of this case is a more serious one. The principles of law to be given application are identical in the Taylor case and in the instant case. The law of the Taylor case is the law of this case, if there is a sufficient degree of similarity between the facts as asserted in the decision in the Taylor case and the facts as this Court actually finds them in the instant case.

 It is undisputed that the facts as stated by Judge Wilbur in writing the opinion in the Taylor case disclose unequivocally an error as to one of the most material features essential to a determination of that case. This being so, it seems to me that this court must apply the principles of law announced in the Taylor case to the facts as actually established by the proof submitted, then ascertain if a different result would be reached in this case from that which obtained in the Taylor case.

 This court recognizes its duty to apply the law as announced by the Circuit Court of Appeals for this Circuit. We have here a situation where the law has been given application to an erroneous material fact, and it would therefore seem plain that the only way to avoid a palpable injustice is to apply the law to the facts as actually established by the proof, even though it might result in an inferior court's arriving at a result directly contrary to that of an appellate court. There is no way to avoid an obvious injustice except to apply the law to the facts as they are actually established, rather than as they were erroneously determined to be in the Taylor case. I hold, therefore, that the Taylor case does not establish as binding upon this court the doctrine of stare decisis, since the facts as therein stated are not those found in this case.

 The defendants contend that, irrespective of the error of fact as stated in the Taylor opinion, the conclusions reached still control because there are sufficient admitted facts in the opinion to support the conclusion reached by the Circuit Court. A few quotations from the Taylor case clearly indicate that the decision turned upon the question as to whether the State of Washington had vested rights in the tide lands of the Pacific Ocean and the Quillehute River bed where these waters were adjacent to the Indian Reservation. That the court held the State had acquired such rights by reason of its existence prior to the creation of the Reservation, is evidenced by the following language (44 F.2d 535):

 'We are inclined to think that the inferences to be derived from the fact that the Quileute (Quillehute) Indians for whom the reservation was set apart are overcome by the prior express grant of the tide lands and navigable waters to the state.'

 The court then gave consideration to a decision of the United States Supreme Court, in Donnelly v. United States, 228 U.S. 243, 33 S. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E, 710, and used this language:

 'This case would be determinative of the case at bar were it not for the fact that the title of the state of Washington to the submerged lands now claimed to belong to the Quileute Indian Reservation was subject to the inchoate rights of the Indians. The decision, however, clearly shows the importance of a consideration of previously vested rights of a state in navigable streams, in determining the effect of a subsequent order setting apart an Indian reservation. So considered, we hold that the order of President Cleveland of February 19, 1889, under consideration did not reserve the submerged lands in question for their use.'

 The Donnelly case, supra, dealt with the question of jurisdiction over the bed of the Klamath River, where, by prior presidential proclamation, the Hoopa Valley Reservation was established upon 'a tract of country one mile in width on each side of the Klamath River.' 1 Kappler's, p. 815. It was there held that jurisdiction of the bed of the River was in the United States, and belonged to the Indian Reservation, even though no reference to the bed of the River was made in the Executive Order establishing the Reservation. It is this decision that Judge Wilbur says states the law that 'would be determinative' as to the Quillehute Reservation.

 It is impossible for me to conceive how language could be more direct and unequivocal than that just quoted from the Taylor case, to indicate that the decision turned on the mistaken assumption that the State of Washington was in existence at the time the Reservation was created, and its rights to the river bed and tide lands had become fixed.

 The Reservation was created on the 19th day of February, 1889, and whatever rights the Quillehute Tribe of Indians have therein were determined on that day. The Enabling Act, by which the Territory of Washington was permitted to become a state, did not become law until the 22nd day of February, 1889, and the State was not admitted into the Union until November 11, 1889.

 In the Taylor case, the court said:

 'After all, the question is one of intent to be determined from the terms of the instruments under consideration in the light of the surrounding circumstances and the history leading up to the promulgation of the instrument.'

 An examination of the opinion, however, discloses that the Court did not, in the opinion, review the 'surrounding circumstances,' nor the 'history leading up to the promulgation of the instrument,' but turned its decision of the case upon the 'previously vested rights of a state,' and based it upon the mistaken fact that the creation of the State of Washington was prior to the creation of the Indian Reservation, which resulted in the conclusion that the State had vested rights. This court must consider the facts as made by the proof and determine the rights of the parties based upon such proof.

 To determine the intent of the president when he promulgated the proclamation creating the Quillehute Reservation, we must go back to the treaty made by the Government with this Tribe of Indians in 1855. It is this document that determines the obligation of the Federal Government to this tribe of Indians. Article I of the Treaty specifically provides that the Quillehute Indians, together with Indians of other tribes, ceded to the United States all prior claim they had to a vast acreage of land on the Olympic Peninsula upon the conditions as set forth in Article II of the Treaty, which are:

 'There shall, however, be reserved, for the use and occupation of the tribes and bands aforesaid, a tract or tracts of land sufficient for their wants within the Territory of Washington, to be selected by the President of the United States, * * * and no white man shall be permitted to reside thereon without permission of the tribe and of the superintendent of Indian affairs or Indian agents.' (12 Stat. 971 -- II Kappler's Indian Laws and Treaties, 719.)

 In order to fulfill this solemn treaty obligation, President Cleveland, thirty-four years later, promulgated an ...

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