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Court of Appeal, First District, Division 3, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Walter McCOVEY, Jr. and Lance R. Wilkie, Defendants and Appellants.

Cr. No. 23742.

Decided: July 21, 1983

Anthony M. D'Anna, San Jose, George Forman, California Indian Legal Services, Oakland, for defendants and appellants. George Deukmejian, John K. Van De Kamp, Attys. Gen., R.H. Connett, Asst. Atty. Gen., Roderick E. Walston, Charles W. Getz IV, Mary E. Hackenbracht, Bruce S. Flushman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Defendants Walter McCovey and Lance Wilkie were convicted of violating Fish and Game Code section 8685.6, which prohibits selling or possessing for sale salmon, steelhead, or striped bass taken in California waters by use of a gill net.1  The principal question in their appeal is whether the state has jurisdiction to regulate the off-reservation sale or possession for sale of fish caught on the Klamath River by Hoopa Valley Reservation Indians.


Defendant McCovey is a Yurok Indian of the Hoopa Valley Indian Reservation in northern California.   In September 1980, McCovey offered to sell approximately 1,400 pounds of salmon to a fish wholesaler in San Jose, for $2.15 per pound.   McCovey had caught the salmon, each weighing from 10 to 20 pounds, with gill nets on the Klamath River, somewhere between its mouth and its confluence with the Trinity River, within the boundaries of the Hoopa Valley Reservation.   After McCovey and defendant Wilkie, who is not a Yurok Indian, delivered the fish to the wholesaler, they were arrested by officers of the state's Department of Fish and Game.

In addition to being charged with violating section 8685.6 (count one), the two were charged with conspiracy to violate section 2002 of the Fish and Game Code, which prohibits possession of any fish taken in violation of any of the provisions of that code (count two), and with violating section 2002 itself (count three).2  Defendants demurred (Pen.Code, § 1004) and moved to dismiss the information (Pen.Code, § 995), primarily on the ground that as a Yurok Indian, defendant McCovey had a federally protected right to fish on the Klamath River, and that the state had no jurisdiction to restrict that right by prohibiting him from selling fish which he lawfully caught.   The trial court granted the motion to dismiss with respect to counts two and three, but denied it with respect to count one, reasoning that although reservation Indians may have the right to gill net fish on the reservation, the state can control the off-reservation sale of such fish.   Defendants then submitted the matter on the preliminary hearing transcript, and were found guilty.   McCovey was fined $2,500 and placed on probation, on condition he serve 90 days in jail;  the sentence was stayed pending appeal.   Wilkie was fined $500 and placed on probation.


Defendant McCovey contends:  (1) his prosecution was an unlawful interference with his federally protected right to fish on the lower Klamath River, absent proof that the state had exhausted all other means of conserving the salmon fishery on that river;  (2) the state's power to regulate his fishing rights has been preempted by regulations promulgated by the Department of the Interior;  and (3) Fish and Game Code section 8685.6 impermissibly discriminates against Indians and Indian commerce.   Without citation to authority, defendant Wilkie argues only that if the state had no jurisdiction to prosecute McCovey, Wilkie's conviction should also be reversed.

Some background information is essential to an understanding of this controversy and of the defendants' contentions.   In 1953, Congress passed Public Law No. 280 (67 Stat. 588, 18 U.S.C. § 1162;  28 U.S.C. § 1360), granting California, among other states, jurisdiction over offenses committed by Indians in the areas of “Indian country.”   Public Law No. 280 also provided, however, that “[n]othing in this section ․ shall deprive any Indian or any Indian tribe ․ of any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulation thereof.”  (18 U.S.C. § 1162(b).)

“Indian country” includes all lands within the limits of any Indian reservation.  (18 U.S.C. § 1151.)   The boundaries of the Hoopa Valley Indian Reservation were settled by the United States Supreme Court in Mattz v. Arnett (1973) 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92.   In Mattz, a California game warden seized gill nets owned by a Yurok (or Klamath River) Indian, which were stored close to the Klamath River, within 20 miles of its mouth.   Use of the nets was prohibited by the state's Fish and Game Code.   The Supreme Court held that the nets were seized within the Hoopa Valley Reservation, which it defined as a strip of territory commencing at the Pacific Ocean and extending one mile in width on each side of the Klamath River for approximately 50 miles, where it connects with a 12-mile square area known as the Original Hoopa Valley Reservation.   The court then remanded the matter for a determination of the existence of the Indian's fishing rights and the applicability of California law notwithstanding reservation status.  (Mattz, supra, 412 U.S. at p. 485, 93 S.Ct. at p. 2248.)

On remand, this court held that Indians on the reservation had fishing rights which were granted by implication with the creation of the reservation “for Indian purposes,” and that state qualification of those rights was precluded both by the supremacy clause of the United States Constitution and by the renewed guarantee of Indian fishing rights in Public Law No. 280.  (Arnett v. Five Gill Nets (1975) 48 Cal.App.3d 454, 461–462, 121 Cal.Rptr. 906;  see Blake v. Arnett (9th Cir.1981) 663 F.2d 906, 909, 911.)

Commercial fishing was not an issue in Five Gill Nets, as the Indian whose nets were seized fished only “for the subsistence of his family.”  (Five Gill Nets, supra, 48 Cal.App.3d at p. 458, 121 Cal.Rptr. 906.)   No appellate court has as yet precisely defined the outer limits of the rights recognized in that case, although more than one court has considered the character of a right to fish guaranteed by treaty language (see, e.g., Puyallup Tribe v. Dept. of Game (1967) 391 U.S. 392, 395, 88 S.Ct. 1725, 1726, 20 L.Ed.2d 2689 (Puyallup I );  Washington v. Fishing Vessel Assn. (1979) 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823;  see also New Mexico v. Mescalero Apache Tribe (1983) ––– U.S. ––––, ––––, 103 S.Ct. 2378, 2387, 76 L.Ed.2d 611 [Tribe's original reliance on wildlife for subsistence and fact that tribal members “freely” took fish and game in ancestral territory led Supreme Court to conclude that the sovereignty retained by tribe under treaty included its right to “regulate the use of its resources” by members and nonmembers].)

 Regardless of the original extent of those rights, however, commercial fishing for salmon on the lower Klamath by Hoopa Valley Reservation Indians was prohibited by federal regulation at the time of defendants' arrest.  (44 Fed.Reg. 17144–17151 (Mar. 20, 1979) [former 25 C.F.R. § 258.1 et seq.].)   Commencing in 1977, the Department of the Interior promulgated extensive regulations governing Indian fishing within the boundaries of the Hoopa Valley Reservation,3 “to protect the fishery resources and to establish procedures for the exercise of the fishing rights of Indians of the Reservation until a Reservation-wide management mechanism is established with the capacity to manage and regulate the Indian fisheries on the Reservation.”  (44 Fed.Reg. 17144, 17148 [former 25 C.F.R. § 258.1(a) ].)   Among other provisions, the regulations defined “eligible Indian fishers,” required them to obtain an Indian fishers' identification card before exercising any Indian fishing rights, and specified permissible and prohibited fishing gear.  (Id., at p. 17149 [former §§ 258.6, 258.8].)   While the regulations in effect at the time of defendants' arrest permitted some use of gill nets, they flatly prohibited commercial fishing and the sale of salmon caught on the Hoopa Valley Reservation.   Commercial fishing was defined as the taking of salmon or steelhead with the intent to sell them or profit commercially from them;  consumptive or subsistence fishing was defined as the taking of salmon or steelhead for personal consumption by Indians of the reservation and their immediate families.  (Id., at pp. 17148–17149 [former §§ 258.4(b), (c), 258.8(c), (d) ].)  Indians violating the regulations were subject to prosecution before the Court of Indian Offenses of the Hoopa Valley Reservation;  a first violation of the commercial fishing prohibition was punishable by a fine of no more than $200, or two months in jail, or thirty days suspension of tribal fishing rights.  (Id., at pp. 17150–17151 [former §§ 258.14, 258.15].)

In short, McCovey's sale of Klamath River salmon was prohibited by these federal regulations, as well as by state law.


We turn to a consideration of defendants' contentions.   First, defendants argue that their prosecution was an unlawful interference with McCovey's federally protected right to fish on the lower Klamath River.

 The narrow issue in this case is the state's jurisdiction to regulate the off-reservation sale of salmon caught on the Klamath River by reservation Indians.   With certain exceptions, the general rule is that outside “Indian country,” Indians are subject to nondiscriminatory state laws, absent express federal law to the contrary.  (New Mexico v. Mescalero Apache Tribe, supra, ––– U.S. at ––––, fn. 18, 103 S.Ct. at 2387, fn. 18;  see DeCoteau v. District County Court (1975) 420 U.S. 425, 429, fn. 3, 95 S.Ct. 1082, 1085, fn. 3, 43 L.Ed.2d 300;  see also Cohen, Handbook of Federal Indian Law (1982 ed.) p. 348.)

In tacit recognition of that general rule, defendants argue that although the state purports to be regulating only off-reservation conduct, the effect of its prohibition on the sale of gill-netted salmon is to interfere with the on-reservation fishing rights which were recognized in Arnett v. Five Gill Nets, supra, 48 Cal.App.3d 454, 121 Cal.Rptr. 906.   Those rights, defendants argue, included the right to determine what use to make of the fish, and thus cannot be abridged by making a distinction between subsistence and commercial fishing.   Defendants acknowledge that under certain circumstances and despite Public Law No. 280, state regulation of federally protected fishing rights has been upheld, provided that the regulation is a reasonable and necessary conservation measure, that its application to Indians is necessary in the interests of conservation, and that it does not discriminate against Indians.   (See generally, Washington v. Fishing Vessel Assn. (1979) 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823;  Puyallup Tribe v. Washington Game Dept. (1977) 433 U.S. 165, 97 S.Ct. 2616, 53 L.Ed.2d 667 (Puyallup III );  Antoine v. Washington (1975) 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129;  Washington Game Dept. v. Puyallup Tribe (1973) 414 U.S. 44, 94 S.Ct. 330, 38 L.Ed.2d 254 (Puyallup II );  see also New Mexico v. Mescalero Apache Tribe, supra, 462 U.S. at pp. ––––, fn. 15, ––––, 103 S.Ct. at pp. 2385, fn. 15, 2390.)   Defendants argue that in this case, the state has failed to prove that enforcement of the statutes at issue is necessary for conservation purposes.

 The parties argue at length about the scope of the fishing rights recognized in Five Gill Nets, but we need not and do not resolve that dispute.   As we have already explained, at all times relevant to this case, federal regulations banned Indian commercial fishing on the reservation.   Accordingly, the state's prosecution of defendants simply did not interfere with any federally protected fishing rights, and we are aware of no federal law which would immunize reservation Indians from prosecution for conduct off the reservation which violates the state's fish and game laws.

 We recognize that the federal ban on Indian commercial fishing may not necessarily be permanent.   The Department of the Interior has indicated its belief that although a moratorium on commercial fishing is presently required, the right to fish commercially on the reservation does exist, and “may be exercised at such time in the future when the fish runs can withstand the increased harvest.”  (44 Fed.Reg. 17146 (Mar. 20, 1979).)   Moreover, at some future date the federal regulations may be replaced by federally approved tribal ordinances.   We will not speculate about or attempt to resolve a conflict which did not exist at the time of defendants' arrest, which is presently nonexistent,4 and which may or may not ever materialize.   A court will not consider every conceivable situation which might arise under the language of a statute, and will not consider the question of constitutionality with reference to hypothetical situations.  (People v. Parker (1973) 33 Cal.App.3d 842, 848, 109 Cal.Rptr. 354;  Max Factor & Co. v. Kunsman (1936) 5 Cal.2d 446, 468, 55 P.2d 177.)

The Attorney General urges that we not confine our decision to the state's power to regulate off-reservation conduct.   He begins his assault on Indian fishing rights by arguing that the state has jurisdiction to regulate commercial fishing on the Klamath by reservation Indians;  therefore, he reasons the federal government is without authority to regulate such fishing.   First, notwithstanding Mattz v. Arnett, supra, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92, and Arnett v. Five Gill Nets, supra, 48 Cal.App.3d 454, 121 Cal.Rptr. 906, he argues that the Klamath River is not part of the Hoopa Valley Indian Reservation, and that therefore the state has sovereign regulatory control of the river's waters.5  In the alternative, he argues that when Congress authorized creation of the reservation, it neither granted nor intended to grant commercial as opposed to subsistence fishing rights.   Therefore, he reasons, the state has unfettered power to regulate commercial fishing.   In a related argument, he speculates that the Department of the Interior may someday permit commercial fishing on the reservation, and argues that any regulation to that effect would be beyond the scope of the department's authority.   Next, he argues that even if the Indians do have commercial fishing rights on the Klamath, those rights have been properly restricted by the state for conservation purposes.

We sympathize with the state's desire to clarify the limits of its authority over Klamath River fishing by Hoopa Valley Reservation Indians.   However, we need not reach the issues raised by the Attorney General in order to affirm defendants' convictions.   We will not gratuitously express our views on matters which are unnecessary to our decision, particularly when those issues involve factual disputes which were never before the trial court.   We hold only that the state's prosecution of defendant McCovey did not interfere with his federally protected fishing rights, because at the time of his arrest, he had no right to fish for commercial purposes on the Hoopa Valley Indian Reservation.

Defendants also contend that with the adoption of regulations governing Indian fishing on the Hoopa Valley Reservation, the federal government preempted the field of regulation of Indian fishing and related activities.

 The standards of federal-state preemption which have emerged in other areas of the law are generally not helpful in analyzing federal enactments which regulate Indian tribes, because of the unique historical traditions of Indian sovereignty over the reservation and tribal members, and the federal commitment to tribal self-sufficiency and self-determination.  (New Mexico v. Mescalero Apache Tribe, supra, 462 U.S. at p. ––––, 103 S.Ct. at p. 2385;  White Mountain Apache Tribe v. Bracker (1980) 448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665.)   With respect to the conduct of Indians and non-Indians on a reservation, the United States Supreme Court has rejected the proposition that in order to find a particular state law preempted by operation of federal law, an express congressional statement to that effect is required.  (Id., at p. 144, 100 S.Ct. at p. 2584.)   Indians going beyond reservation boundaries, however, have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the state, absent express federal law to the contrary.  (New Mexico v. Mescalero Apache Tribe, supra, 462 U.S. at p. ––––, 103 S.Ct. at p. 2387, fn. 18;  Mescalero Apache Tribe v. Jones (1972) 411 U.S. 145, 148–149, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114;  White Mountain Apache Tribe v. Bracker, supra, 448 U.S. at p. 144, fn. 11, 100 S.Ct. at p. 2584, fn. 11.)   That principle is relevant to a state's criminal laws, and applies to tribal fishing enterprises.  (Id., at p. 149, 100 S.Ct. at p. 2586, citing Kake Village v. Egan (1961) 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573.)   In Kake Village, the Supreme Court upheld the power of the State of Alaska to enforce its anti-fish-trap regulations against two Indian communities which had not been provided with a reservation and which did not have any fishing rights derived from federal laws.  (Id., at pp. 62, 76, 82 S.Ct. at pp. 564, 571;  see also In re Wilson (1981) 30 Cal.3d 21, 177 Cal.Rptr. 336, 634 P.2d 363.)

 The federal regulations which we have already summarized do not provide that Indians who leave the reservation are immune from prosecution under state law, and defendants do not contend otherwise.   Instead, defendants rely on the rule that the federal adoption of a general regulatory scheme to govern commerce with Indians or other reservation activity will preclude any efforts by nonfederal government entities to regulate the same activity.  (See, e.g., New Mexico v. Mescalero Apache Tribe, supra, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611 [tribe's authority to regulate hunting and fishing on reservation preempts state jurisdiction to regulate hunting and fishing by nonmembers on the reservation, as concurrent jurisdiction would effectively nullify tribe's authority];  White Mountain Apache Tribe v. Bracker, supra, 448 U.S. 136, 100 S.Ct. 2578, 65 L.Ed.2d 665 [pervasive federal regulatory scheme for harvesting Indian timber precludes imposition of state motor carrier license and use fuel taxes on non-Indian logging company's activity on tribal land];  Ramah Navajo Sch. Bd. v. Bureau of Revenue (1982) 458 U.S. 832, 102 S.Ct. 3394, 73 L.Ed.2d 1174 [comprehensive federal regulation of construction and financing of Indian educational institutions precludes imposition of state gross receipts tax on non-Indian construction company which built school on reservation];  see also Santa Rosa Band of Indians v. Kings County (9th Cir.1975) 532 F.2d 655, 668 [application of county building codes and zoning ordinances to reservation would interfere with federal statutory programs aimed at upgrading living conditions of reservation Indians].)   However, the preemption analysis upon which defendants rely is not controlling when the question is the applicability of state law to Indians outside the reservation.  (See, e.g., Mescalero Apache Tribe v. Jones, supra, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 [state has power to impose gross receipts tax on ski resort operated by Mescalero Apache Tribe outside the boundaries of reservation, but imposition of use tax prohibited by federal statute].)   As we have already indicated, we find no federal law precluding the state from prosecuting defendant McCovey for selling or possessing for sale gill-netted fish outside the reservation.

 Finally, defendants' contention that state law discriminates against reservation Indians because only they have the right to fish with gill nets on the Klamath is also without merit, as defendant McCovey had no right to gill-net for commercial purposes on that river.   In light of our conclusion that the state did not act in excess of its jurisdiction in prosecuting defendant McCovey, we need not consider whether defendant Wilkie could claim that he had been licensed or granted permission to sell Klamath River salmon by tribal authorities.  (See Donahue v. Justice Court (1971) 15 Cal.App.3d 557, 93 Cal.Rptr. 310.)

Judgments are affirmed.


1.   Section 8685.6 was enacted as urgency legislation, effective July 11, 1980.  (Stats.1980, ch. 393, § 2, p. 775.)   The maximum punishment for a violation of the section is a fine of $5,000, or imprisonment in either state prison or county jail for not more than a year, or both fine and imprisonment.  (Fish and G.Code, § 12004.)

2.   The information does not specify which provision of the Fish and Game Code defendants allegedly violated and conspired to violate, but Fish and Game Code section 8685.5 provides that gill nets may not be used to take salmon, steelhead, or bass.

3.   Congress has the power to cancel unilaterally rights guaranteed by Indian treaty (Lone Wolf v. Hitchcock (1903) 187 U.S. 553, 566, 23 S.Ct. 216, 221, 47 L.Ed. 299), and Congress or the President can terminate rights conveyed by creation of an Indian reservation pursuant to executive order.  (Hynes v. Grimes Packing Co. (1949) 337 U.S. 86, 103, 69 S.Ct. 968, 979, 93 L.Ed. 1231.)   Regulations promulgated by the Secretary of the Interior, pursuant to congressional or presidential authorization, have the force of statutory enactments.  (Bridgeman v. United States (9th Cir.1905) 140 F. 577, 583;  United States v. Thurston County, Neb. (8th Cir.1906) 143 F. 287, 291.)   These regulations were promulgated to the Secretary's statutory responsibility for the supervision and management of Indian affairs.  (43 U.S.C. § 1457, 25 U.S.C. §§ 2, 9;  see 44 Fed.Reg. 17144.)

4.   Former 25 Code of Federal Regulations, section 258 et seq. has been redesignated as 25 Code of Federal Regulations, section 250 et seq. (47 Fed.Reg. 13227 (1982));  the regulations continue to prohibit commercial fishing and the sale of fish caught on the Hoopa Valley Indian Reservation.  (25 C.F.R. § 250.8(c), (d).)

5.   Briefly stated, this argument is based on the premise that when California became a state in 1850, it acquired title to the beds of navigable waters within its boundaries, including the lower Klamath.   Because California's statehood predated the creation of the reservation, the Attorney General argues, the federal government had no power to convey either the title to the riverbed or to grant the right to fish commercially therein when the reservation was established.   In neither Mattz v. Arnett, supra, 412 U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 nor Arnett v. Five Gill Nets, supra, 48 Cal.App.3d 454, 121 Cal.Rptr. 906 did the state raise the issue of its title to the bed of the Klamath, and the Attorney General has failed to enlighten us as to how this navigable waters theory is to be reconciled with Arnett v. Five Gill Nets.   If the federal government was as impotent after 1850 as the Attorney General would have us believe, how then did it grant or reserve the rights recognized in Five Gill Nets?

SCOTT, Associate Justice.

WHITE, P.J., and BARRY–DEAL, J., concur.