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PUYALLUP TRIBE OF INDIANS v. PORT OF TACOMA

July 24, 1981

PUYALLUP TRIBE OF INDIANS, Plaintiff,
v.
PORT OF TACOMA, Defendant



The opinion of the court was delivered by: TANNER

MEMORANDUM OPINION

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 STATEMENT OF THE CASE

 This case came on regularly for trial before the above named court on May 4, 1981. Jurisdiction in this case is under 28 U.S.C. 1362. Venue is proper in this court in that the Puyallup river, which is at issue here, runs through the Western District of Washington and empties into Puget Sound at Tacoma, Pierce County, Washington.

 The final Pretrial Order was filed on April 27, 1981. Counsel for both parties appeared, oral testimony of witnesses was taken, exhibits were filed, affidavits of other witnesses were filed for consideration by the court. Pretrial briefs, and final arguments were made by both parties. Both parties submitted post-trial briefs. Findings of Facts and Conclusions of Law, before trial and after trial, were submitted for the court's consideration. The cases cited by both parties as possible authority for any of the issues involved herein were all read and considered by the court.

 The court has heard, reviewed, weighed and evaluated all of the evidence in accordance with the applicable Federal Rules of Civil Procedure, Local Rules and the Rules of Evidence.

 Although the court did not believe that the United States or the State of Washington were indispensable or necessary parties in this case, the court did invite both to file amicus curiae briefs. The United States did not respond, but the Attorney General of the State of Washington did file a brief. The court has considered that brief.

 SUMMARY OF FINDINGS OF FACT AND CONCLUSIONS OF LAW

 The issues in this case, as the court understands them does not involve Indian treaty fishing rights as such. But, the history of the Puyallup Indians as to fishing on the Puyallup River is one of the basic issues before the court.

 The parties are before the court seeking an order quieting title to two parcels of real property. The Puyallup Indian Tribe, the Plaintiff herein, and the Port of Tacoma, the Defendant herein, each claim ownership of the two parcels of real property located within the exterior boundaries of the Puyallup Indian Reservation.

 The court has read the decisions in Puyallup I, 391 U.S. 392, 88 S. Ct. 1725, 20 L. Ed. 2d 689, and Puyallup II, 414 U.S. 44, 94 S. Ct. 330, 38 L. Ed. 2d 254, and Puyallup III, 433 U.S. 165, 97 S. Ct. 2616, 53 L. Ed. 2d 667. The decisions in those cases are not dispositive of the issues here. Those cases involved state regulations in the interest of conservation as to Indian treaty fishing rights, net fishing for steelhead trout, by Indians, on the Puyallup Reservation, and the issue of whether or not the Puyallup Indians had exclusive rights under federal treaty to take steelhead passing through the Puyallup River within the confines of the Puyallup Reservation.

 In Puyallup III the Supreme Court of the United States decided that the language used in the 1868 Treaty of Fort Laramie was virtually identical as the language used in Article II of the 1854 Treaty of Medicine Creek, see Puyallup III at 174, 97 S. Ct. at 2622.

 The court is aware that there is no language in the Treaty of Medicine Creek of 1854 and 1855 or in the Executive Order of January 20, 1857 that definitely declares or otherwise makes plain any intention to convey, nor are there any express conveyances that expressly conveyed or referred to the bed of the Puyallup River. The property involved in this lawsuit was not within the exterior boundaries of the 1280 acre Puyallup Reservation as it was established by the Medicine Creek Treaty. But, the property is within the exterior boundaries as established by the Executive Order of January 20, 1857.

 It is with the foregoing in mind that the Court examines and decides the issues in this case.

 The question is whether the United States conveyed beneficial ownership of the Puyallup riverbed, within the exterior boundaries of the Puyallup Reservation, to the Puyallup Indians by the Treaties of 1854-1855 and the Executive Order of January 20, 1857, and therefore continues to hold the land in trust for the use and benefit of the tribe, or whether the United States retained ownership of the riverbed as public land which then passed to the State of Washington upon its admission to the Union. Montana v. U.S., 450 U.S. 544, 101 S. Ct. 1245, 67 L. Ed. 2d 493 and Choctaw Nation v. Oklahoma, 397 U.S. 620, 627-628, 90 S. Ct. 1328, 1332-33, 25 L. Ed. 2d 615.

 As a general principle the federal government holds lands under navigable waters in trust for future states, to grant to such states when they enter the Union. There is a strong presumption against conveyance of such lands by the United States. Montana v. U.S., supra; U.S. v. Oregon, 295 U.S. 1 at 14, 55 S. Ct. 610 at 615, 79 L. Ed. 1267.

 It has been determined, however, that congress may sometimes convey lands below the high water mark of a navigable water. Shively v. Bowlby, 152 U.S. 1, 14 S. Ct. 548, 38 L. Ed. 331; Montana v. U.S., supra.

 Whether a grant or reservation included the bed of a navigable river depends upon whether there was demonstrated an intention to do so. That intent is to be determined from the documents which created the reservation and from other available documents and surrounding circumstances which reflect the intention of the parties. Montana v. U.S., supra; Alaska Pacific Fisheries v. U.S., 248 U.S. 78, 87, 39 S. Ct. 40, 41, 63 L. Ed. 138.

 In order to find that a riverbed was included within a reservation there must have been a public exigency to justify a departure from the normal rule. The Supreme Court has defined "public exigency" to include three kinds of situations. They are as follows: (1) performance of international obligations; (2) improvement of commerce, or (3) "carrying out other public purposes appropriate to the objects for which the territory was held". U.S. v. Holt State Bank, supra; Shively v. Bowlby, supra.

 The establishment of an Indian Tribe can be an "appropriate public purpose" within the meaning of Shively v. Bowlby, justifying a congressional conveyance of a riverbed.

 The Puyallup Tribe of Indians is duly recognized by the United States Secretary of Interior. The Tribe is located on the Puyallup Indian Reservation in the Western District of Washington. Members of the Tribe are descended from Puyallup Indians who were parties to the Treaty of Medicine Creek 1854-1855 and the Executive Order of January 20, 1857.

 The importance of fishing to the diet and way of life of an Indian Tribe is among the circumstances which can demonstrate the required "public exigency" sufficient to support a finding that the bed of a river was included within an Indian reservation. Montana v. U.S., supra; Alaska Pacific Fisheries v. U.S., supra.

 This court has reviewed, weighed and evaluated all of the evidence presented herein by both parties, and the court is persuaded by the most credible evidence that at the time of the Treaty of Medicine Creek, 1854-1855, and the Executive Order of January 20, 1857, the Puyallup Indians depended primarily upon fishing for their diet, and as a primary item of trade with other Indians as well as later with non-Indians. The evidence also shows that the Puyallup Indians had occupied the area around the Puyallup River, Commencement Bay and the surrounding areas of southern Puget Sound since time immemorial.

 The court is convinced by a preponderance of the evidence adduced herein, that the Puyallup Indians centered their lines in and around the Puyallup River. Their primary diet, their spiritual, religious, political, and social life came from the river.

 The court is also persuaded by a preponderance of the evidence that the establishment of the Puyallup Indian Tribe was an "appropriate public purpose" justifying a congressional conveyance of a riverbed.

 The expansion of the Puyallup Reservation by the Executive Order of January 20, 1857 to include that area of the Puyallup River now at issue here was a "public exigency". The evidence is substantial, and actually uncontradicted by any credible evidence that there was an urgent and immediate need which the United States felt to meet the needs and desires of the Indians so as to end the war which was then taking place.

 The land at issue here is not included within the 22 acres remaining on the reservation. The alienation of land by those certain members of the Puyallup Tribe did not transfer title to any part of the Puyallup River.

 Pursuant to two acts of congress, 27 Stat. 633, and c. 1816, 33 Stat. 565, certain members of the Puyallup Tribe alienated, in fee simple absolute, all but 22 acres of their 18,000 acre reservation. None of the 22 acres abuts on the Puyallup River. Puyallup Tribe v. Dept. of Game State of Washington, 433 U.S. 165, 97 S. Ct. 2616, 53 L. Ed. 2d 667.

 Relying on Mattz v. Arnett, 412 U.S. 481, 93 S. Ct. 2245, 37 L. Ed. 2d 92, the Court of Appeal, Ninth Circuit, held "that the Puyallup Indian Reservation continues to exist", U.S. v. State of Washington, 496 F.2d 620 (9th Cir. 1974).

 The facts in this case show that by a preponderance of the evidence that the Puyallup River was at all times pertinent herein, and is still today a navigable river.

 It is the opinion of this court that the preponderance of the evidence shows that the facts and circumstances herein are substantial and persuasive, that the United States intended, and did include, the underlying bed of the Puyallup River as part of the Puyallup Indian Reservation.

 The effect of movement of a river channel on ownership of property in the vicinity of a river is to be determined by federal law. However, federal law will look to the law of the state in which the case arises for the legal standards.

 Under Washington law, changes in river channels, as applied to this case, involve certain accretive changes and avulsive changes.

 Under Washington law, when the bank of a navigable river forms the boundary between property owners, that boundary changes with accretive changes in the river channel. Harper v. Holston, 119 Wash. 436, 441, 205 P. 1062, 1064; Smith Tug & Barge Co. v. ...


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