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 ...