Appeal from District Court, Clatsop County. George F. Cole, Judge. Nos. G84-345, G84-346, G84-347, G85-73, G85-74.
Linda DeVries Grimms, Assistant Attorney General, Salem, argued the cause for appellant. With her on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Phillip L. Nelson, Astoria, argued the cause and filed the brief for respondents.
Warden, Presiding Judge, and Van Hoomissen and Young, Judges.
The state appeals from orders dismissing citations that allege violations of commercial fishing regulations. Defendants are Chinook Indians who were fishing at usual and accustomed Chinook fishing locations on the Columbia River when they received the citations. The trial court held that, under State v. Goodell, 38 Or App 511, 590 P2d 764, rev den 287 Or 123 (1979), defendants had a treaty right to fish at those locations and that that right precluded state regulation. The state asks us to reconsider Goodell in the light of Wahkiakum Band of Chinook Indians v. Bateman, 655 F2d 176 (9th Cir 1981). We do so, overrule Goodell and reverse the dismissal of the citations.
The underlying facts are found in State v. Goodell, supra, and Wahkiakum Band of Chinook Indians v. Bateman, supra. The various bands of Chinook Indians who lived along the Columbia River never signed a ratified treaty with the United States. As a result, they have no direct treaty rights to use their usual and accustomed fishing locations.*fn1 Beginning in 1873, various federal actions affiliated the Chinooks with the Quinaults of Washington. The affiliation brought the Chinooks under the Treaty of Olympia which the Quinaults made with the United States in 1855. The treaty guaranteed the Quinaults the right to fish at their usual and accustomed places. In State v. Goodell, supra, we held that the affiliation brought the Chinooks ' usual and accustomed locations within the guarantee of the treaty. We did so in part because the Ninth Circuit, in United States v. State of Washington, 520 F2d 676, 692 (9th Cir 1975), cert den 423 U.S. 1086 (1976), had apparently held that Indians on a reservation formed from several tribes and bands, some of whom were parties to treaties and some of whom were not, could fish at the usual and accustomed places of all the tribes and bands, including those which were not signatories to any treaty.
In Wahkiakum Band of Chinook Indians v. Bateman, supra, the Ninth Circuit, without mentioning United States v. State of Washington, supra, held that the affiliation of the
Chinooks with the Quinaults merely extended to the Chinooks the fishing rights which the Quinaults already had; it did not expand the treaty to include separate Chinook rights within its limits.
"Only the Quinault and the Quillehute signed the treaty, and therefore only their fishing grounds are protected by Article III. Article VI merely provided the mechanism for consolidation of other tribes on a single reservation with the Quinault. Subsequent affiliation does not, under Article VI, give the Wahkiakum standing as a treaty signatory, nor does it resurrect and protect any fishing rights the Wahkiakum may have had originally. As members of a tribe subsequently affiliated with the Quinault under the treaty, they are, however, entitled to share such rights as are granted to the original signatories by the treaty. * * * The Columbia River areas claimed by the Wahkiakum were not traditional grounds of the Quinault and thus are not covered by Article III." 655 F2d at 179. (Footnotes omitted.)
The question is whether we should adhere to our reasoning in State v. Goodell, supra, or adopt the more recent approach of the Ninth Circuit. The holding in Wahkiakum Band of Chinook Indians v. Batemen, supra, is a reasonable resolution of a problem whose answer is not obvious. On the other hand, our rationale in Goodell is also supportable. If the issue were simply whether we should adhere to a previously stated position against a contrary argument whose superiority is not compelling, principles of stare decisis would lead us to affirm the trial court. However, the issue is not that simple.
In State v. Goodell, supra, we found guidance for our decision in a Ninth Circuit case, because the issue is one of federal law and that court has expertise in the subject which is entitled to our respect.*fn2 In Wahkiakum Band of Chinook Indians, v. Bateman, supra, the Ninth Circuit decided the precise issue which we decided in Goodell ...